The privilege against self-incrimination is one of the most important guarantees of criminal procedure, enshrined in international legal instruments and in the constitutions and laws of many countries. It is not an unlimited procedural guarantee. Almost universally, its scope is limited to testimonial evidence, while physical evidence is not protected by the privilege. Many theories have emerged in theory and jurisprudence which have shaped the criteria for distinguishing one from the other. Particularly in the United States, the theoretical framework is constituted by theories that can be classified into two groups: communication theories and substantive theories. The former focus on the act of communication in defining testimonial evidence, while the latter focus on specific (acquired) content. The concept of privilege against self-incrimination, while developed in Anglo-American legal systems, has been developed in Europe mainly by the European Court of Human Rights. The latter defines the scope very similarly to the United States Supreme Court, although it does not use the concepts of physical and testimonial evidence. Slovenian jurisprudence in this area is finding its way between the approaches of the United States and the European Court of Human Rights. A way needs to be found, as there are (legitimate) concerns as to whether the distinction between testimonial and physical evidence is justified at all, and how the new types of evidence emerging with new investigative techniques affect the understanding of the scope of the privilege. The thesis addresses all these dilemmas, but also attempts to offer an answer to the question of where the discussed theories place the selected evidence within the testimonial-physical dichotomy.
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