Self-Incrimination and the Epistemology of Testimony

22 Pages Posted: 19 May 2008

Abstract

The United States Supreme Court's limitation of the privilege against self-incrimination to evidence of a testimonial nature has been controversial. The doctrinal reliance on a distinction between physical and testimonial evidence has proven difficult to apply in practice, and it has been criticized as being descriptively inaccurate, analytically incoherent, and normatively indefensible. This article offers a defense of the distinction on epistemological grounds. The philosophical focus on testimony as a source of knowledge provides some insight into what makes testimony distinct as an epistemic source. These considerations are used to provide a coherent and principled way to distinguish what evidence to treat as testimonial for Fifth Amendment purposes: any evidence that requires a fact-finder to rely on the epistemic authority of the defendant. This principle is then used to justify a testimonial privilege in light of the presumption of innocence and to clarify doctrine.

Keywords: Self-Incrimination, Fifth Amendment, Testimonial Evidence, Physical Evidence, Schmerber, Presumption of Innocence

Suggested Citation

Pardo, Michael S., Self-Incrimination and the Epistemology of Testimony. Cardozo Law Review, Vol. 30, U of Alabama Public Law Research Paper No. 1134033, Available at SSRN: https://ssrn.com/abstract=1134033 or http://dx.doi.org/10.2139/ssrn.1134033

Michael S. Pardo (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

HOME PAGE: http://www.law.georgetown.edu/faculty/michael-s-pardo/

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
341
Abstract Views
1,646
Rank
161,446
PlumX Metrics