The privilege against self-incrimination and the distinction between testimonial and non-testimonial evidence

The ambit of the privilege against self-incrimination is limited to testimonial or communicative assertive types of evidence, and excludes all non-testimonial or physical passive evidence. This article seeks to describe the various personality rationales and the values of privacy and dignity which underlie the distinction. It also attempts to explain how the assertive conduct test, first set out by the United States Supreme Court in Schmerber v California, and approved by a number of South African decisions, functionally applies the privilege to the traditional categories of real evidence within the context of s 37 of the Criminal Procedure Act.