Document Type

Working Paper

Publication Date

5-19-2008

SSRN Discipline

Legal Scholarship Network; Criminal Law & Procedure eJournals; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals

Abstract

The United States Supreme Courts limitation of the privilege against selfincrimination 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 factfinder 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

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