The Right to Silence as Protecting Mental Control

This Article examines the idea that individuals have a moral and constitutional right of control over the use of their thoughts vis-à-vis the state. As a point of departure, I consider the prospect of a forensic neuroimaging device that was capable of eliciting recall and recognition from a criminal suspect without the suspect’s having even to answer an interrogator’s question. Reflection on government access to this sort of interrogation technique suggests that the state should be prohibited from either extracting a person’s thoughts without her consent or making use of her compelled thoughts to lay criminal blame upon her. Though neither judges nor scholars have defended this account of the right to silence in explicit terms, the notion of “mental control” I shall develop here underlies much that is assumed about the relation between the Fifth Amendment and the values of freedom and privacy.

Advances in cognitive science and neurotechnology, by promising the acquisition of incriminating information from a person’s brain in a way that avoids traditional concerns about physical or psychological harm, bring the moral and legal significance of mental control into sharp relief.