Academic

Pardo on the Self-Incrimination

By Lawrence Solum

Michael S. Pardo (University of Alabama School of Law) has posted Self-Incrimination and the Epistemology of Testimony (Cardozo Law Review, Vol. 30) on SSRN. Here is the 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.

Full post as published by Legal Theory Blog on May 23, 2008 (boomark / email).