Self-Incrimination and the Epistemology of Testimony

Authors

Michael S. Pardo, University of Alabama School of Law

Abstract

The 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.

Disciplines

Communications Law | Constitutional Law | Criminal Law | Criminal Procedure | Evidence | Law

Recommended Citation

Michael S. Pardo, Self-Incrimination and the Epistemology of Testimony, 30 Cardozo L. Rev. 1023 (2008).
Available at: https://larc.cardozo.yu.edu/clr/vol30/iss3/12