The Protection of Free Choice and the Right to Passivity: Applying the Privilege Against Self-Incrimination to Physical Examinations and Documents' Submission

This Article addresses the question of whether the privilege against selfincrimination should cover physical examinations as well as the obligation to submit documents. This question requires a serious examination of the justifications underlying the privilege against self-incrimination and is of particular relevance in the current age of technological progress that expands the powers assigned to law enforcement agencies to access knowledge and thoughts stored in individuals’ minds. After addressing the comparative law regarding the applicability of the privilege against selfincrimination to physical examinations and to the obligation to submit documents and discussing key justifications for the privilege against self-incrimination, dividing them into epistemic and non-epistemic, and examining in that light whether there is a valid distinction between compelled speech and compelled physical examinations and documents’ submission, the Article concludes that extending the privilege against self-incrimination to physical examinations and to the obligation to submit documents is necessary to protect accused persons’ free will to choose their defense strategy given the burden imposed on the state to prove guilt as a condition for securing convictions.