The Social Epistemology of Legal Trials

Zachary Hoskins, Jon Robson, Zachary Hoskins, Jon Robson

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000345469
• Edition: 1
• Topic: Philosophy
• Subtopic: Epistemology in Philosophy

This collection is the first book-length examination of the various epistemological issues underlying legal trials. Trials are centrally concerned with determining truth: whether a criminal defendant has in fact culpably committed the act of which they are accused, or whether a civil defendant is in fact responsible for the damages alleged by the plaintiff.

Truth is not, however, the only epistemic value which seems relevant to how trials proceed. We may think that a jury shouldn't convict a defendant, even one who is as a matter of fact guilty, unless its members know or at least are justified in believing that the defendant committed the crime in question. Similarly, we might reasonably assume that the trier of fact must have some level of understanding to reach an adequate verdict in any case, but legitimate questions arise as to what level of understanding should be required.

The essays collected in this volume consider a range of epistemological issues raised by trials, such as how much credence jurors should give to eyewitness testimony, the admissibility and role of statistical evidence, and the appropriate standards of proof in different contexts.

The Social Epistemology of Legal Trials will be of interest to scholars and upper-level students working on issues at the intersection of epistemology and philosophy of law.

1Credibility Deficits, Memory Errors and the Criminal Trial

Kathy Puddifoot

1.1Introduction

Work on testimonial injustice has led to increased recognition that people can suffer a credibility deficit due to aspects of their social identity (see, e.g. Carel and Kidd 2014; Collins 2000; Fricker 2007; Mills 2007). When testimonial injustice occurs, people are given less credibility than they would otherwise when providing testimony due to the operation of stereotypes about members of their perceived social group. Credibility deficits of this type can occur within the criminal justice system, when eyewitnesses, claimants, defendants or expert witnesses provide testimony in criminal proceedings, but their testimony is given less credibility than it would otherwise be given due to the operation of stereotypes about their social group.

Miranda Fricker (2007) draws attention to how credibility deficits can occur within the criminal justice system in one of the primary cases that she uses to illustrate testimonial injustice, that of Tom Robinson in To Kill a Mockingbird. Robinson is required to give testimony in his defence at a criminal trial when he is accused of assault. Robinson is a Black man in a racist society and, as such, is not treated as credible when he testifies to his innocence. There are serious negative repercussions for Robinson, as he is found guilty when innocent. In the To Kill a Mockingbird example, the credibility deficit that occurs is due to prejudice on the part of the factfinders in the criminal trial. They do not believe the testimony of a Black man due to prejudice against people of his racial group.

Prejudice is a crucial component of testimonial injustice on Fricker’s extremely influential account. Testimonial injustice only occurs in the presence of social identity prejudice. Prejudice is defined as ‘judgements, which may have a positive or negative valence, and which display some (typically epistemically culpable) resistance to counter-­evidence owing to some affective investment on the part of the subject’ (ibid., p. 35). Therefore, the credibility deficits occurring within the criminal justice system that are highlighted by Fricker’s discussion of testimonial injustice are those involving some resistance to counter-evidence due to an affective investment of the person who is displaying prejudice.

In this chapter, I argue that the focus on cases involving prejudice, while incredibly important, has the potential to occlude various cases of credibility deficit that can have a significant detrimental effect on the criminal justice system, leading to poor outcomes within this system for members of negatively stereotyped social groups, and leading important and useful testimony to be wrongly dismissed. My argument highlights previously unrecognised ways that, even in the absence of prejudice, stereotypes can operate to cause the testimony of members of some stereotyped social groups to be wrongly discredited within the context of the criminal trial.¹ These credibility deficits can produce harms that are epistemic, legal and moral. Yet, those focusing on credibility deficits that occur due to prejudice are unlikely to give them due attention.

The discussion has the following stages. I first identify a type of credibility deficit that any person can suffer simply due to the way that human memory systems operate. I then show that people who are members of groups that are negatively stereotyped as cognitively unreliable, that is, as possessing a cognitive deficiency that makes them unreliable sources of knowledge, or untrustworthy are especially likely to suffer this type of credibility deficit. We shall see that where people suffer the target credibility deficit due to stereotypes about their groups, there are important similarities to standard cases of testimonial injustice discussed in the literature. However, in a significant subset of cases, the credibility deficits occur in the absence of prejudice, so these cases are not captured by the notion of testimonial injustice as defended by Fricker. Focusing on testimonial injustice as originally conceived by Fricker, therefore, obscures the importance of the types of cases discussed here. I argue that this calls for one of the two types of action to be taken: (i) expansion of the application of the notion of testimonial injustice to include cases of credibility deficit occurring in the absence of prejudice, or, preferably, (ii) recognition of a previously unacknowledged type of epistemic, legal and moral harm, sharing many characteristics with testimonial injustice, that occurs in the absence of prejudice.

Before we begin, a note on terminology is required. Credibility deficit could be taken to mean a number of different things. It might be thought that a credibility deficit in the technical sense meant by Fricker only occurs when a person is stereotyped and it is as a result of the stereotyping that they are given less credibility than would otherwise. Alternatively, it might be thought that credibility deficits only occur where less credibility is given than is warranted by the evidence available to the person making the credibility judgement. However, Fricker is committed to credibility deficits being possible in the absence of stereotyping and where there is good evidence in support of the credibility assignment that is made. For example, she describes how the fictional character, Lieutenant Columbo, suffers a credibility deficit when he lures those he is investigating into a false sense of security through his bumbling and shambolic style. A person need not be stereotyping to judge Columbo to be lacking credibility given that he is bumbling and shambolic. The judgement that involves a credibility deficit could be well supported by the evidence that he is bumbling and shambolic. In this chapter, the label credibility deficit is used in a way consistent with Fricker’s definition, to apply to all cases in which a person is treated as less knowledgeable, well-informed and reasonable than they would be if the credibility assignment reflected their true knowledgeability, level of well-informedness and reasonableness. Under this definition, a person can suffer a credibility deficit in a situation in which the person judging them has good evidence in support of the credibility assessment that they make (think again of the Columbo case). This definition of credibility deficit leaves open the possibility that the phenomenon can occur in the absence of prejudice, as a part of a rational response to evidence about the credibility of the person assessed, a point which will become increasingly important later.

1.2The Overcritical Juror Argument

Let us begin, then, by identifying the type of credibility deficit that is central to the current discussion. The credibility deficit has been identified in previous work in which the overcritical juror argument has been presented and defended (Puddifoot 2020). The overcritical juror argument goes as follows.

Eyewitnesses are prone to making errors in their testimony due to the way that human memory systems ordinarily operate. Human memory systems are fallible in ways that lead people to have false² or distorted memories about past events, which make them susceptible to making errors when sincerely testifying about what they have witnessed. For example, human memory systems are prone to the misinformation effect: people form false representations of details of events that they have experienced due to being influenced by inaccurate information provided to them after the event by, for instance, other eyewitnesses or suggestive police questioning (see, e.g. Loftus and Palmer 1974; Loftus et al. 1978; Okado and Stark 2005). The other eyewitness or police officer might, for example, supply the witness with false information about the speed at which a car was travelling before crashing into another vehicle. The eyewitness might then testify that they saw the car travelling at the speed suggested by the false information supplied by the other person. Due to memory biases like the misinformation effect, eyewitnesses are susceptible to misremembering some details of a crime.

Factfinders are likely to infer on the basis of these errors that eyewitnesses are either cognitively unreliable, in the sense that they lack a good supply of information about the event, or untrustworthy, in the sense that they are motivated to deceive to ensure that a certain verdict is achieved. Studies show that where an eyewitness provides details that are refuted, reduced credibility is given to their testimony as a whole. This occurs even where the details that are refuted are trivial (Borckardt et al. 2003). Under such conditions, jurors are unlikely to convict on the basis of the testimony (Hatvany and Strack 1980; Berman and Cutler 1996), even where the details that were refuted were not crucial to any assessment of the guilt or innocence of the suspect (Berman et al. 1995). Eyewitnesses are assumed, based on a small number of trivial errors, to lack a generally good supply of true memories. What this means is that errors like those made in the misinformation effect, which occur due to the ordinary operation of human memory systems, can lead the whole of the testimony of an eyewitness to be dismissed as lacking credibility.

It is perhaps understandable that factfinders reduce the credibility that they give to the whole of an eyewitness’ testimony, choosing not to convict on the basis of the testimony, where some details in the testimony are refuted. However, eyewitnesses nonetheless suffer a credibility deficit when the whole of their testimony is given less credit than it would otherwise due to them providing false details. More specifically, they suffer a credibility deficit when the whole of their testimony is given less credit than it would otherwise due to errors that occur due to them being subject to the misinformation effect. Why is this? Because the misinformation effect occurs due to features of human cognitive systems that facilitate being a good eyewitness. Rather than indicating that an eyewitness is unreliable and/or untrustworthy, errors due to the misinformation effect simply indicate that the eyewitness has ordinary human memory systems, found across the human species, which in fact play an important role in the cognitive functioning that makes us good at being eyewitnesses.

The idea that memory errors can be the result of the ordinary operation of cognitive systems that facilitate being a good eyewitness is complex and requires further explanation. The first point to understand is that the misinformation effect, and other similar memory errors, are now generally taken to be due to the constructive nature of human memory systems (see, e.g. Loftus 2005; Schacter et al. 2011; Michaelian 2013). Memory does not operate like a storehouse, storing discreet and complete files of information about events which can be retrieved at a later point; instead, memory systems store traces of information about events that are constructed into a representation of the past event at the point of retrieval. Take, for example, my experience of meeting a friend at the park last autumn. If memory systems worked like a storehouse, there would be a memory file stored somewhere inside me containing complete information about the event. The memory file would contain information about the date, time and exact location of the meeting; information about which friend I met; information about what we talked about; information about anything we ate or drank; information about whether I enjoyed the experience and so on. In contrast, according to the constructive view of human memory systems, there is no single file of information; the individual pieces of information are distributed as traces of distinct information across the cognitive systems responsible for memory. When I recall the meeting, my cognitive system constructs a representation of the event, drawing on these traces of information to form a plausible representation of the past.

This process of construction can lead to errors. In the process of construction, traces of information about different events can be combined to form false or distorted representations of a past event. For example, when constructing a mental representation that I take to be a memory of meeting in the park with my friend Mo, I might include details from another meeting in a park with my friend Aria. I might seem to recall that Mo brought a football and we had a kick around when in fact it was Aria who brought a football when we met in the same park in the summer. What is found in this example is an error in the process of memory construction.

Under the constructive view of human memory, the misinformation effect is understood as an error in the process of construction. In the misinformation effect, traces of information about more than one event are combined at the point of construction to form a single representation. Traces of information about one’s personal experience of the event (e.g. a car crash one has witnessed) become combined with traces of false information provided by testimony received after the event (e.g. false information about the speed of the vehicles involved in the crash), to produce a representation of the initial experience that reflects errors contained in the received information. Therefore, the constructive nature of human memory systems is taken to explain the ta...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• Introduction
• 1. Credibility Deficits, Memory Errors and the Criminal Trial
• 2. Eyewitness Testimony, the Misinformation Effect and Reasonable Doubt
• 3. On Testifying and Giving Evidence
• 4. Explaining the Justificatory Asymmetry between Statistical and Individualized Evidence
• 5. Character, ‘Propensities’, and the (Mis)use of Statistics in Criminal Trials
• 6. Against Legal Probabilism
• 7. Justified Belief and Just Conviction
• 8. The ‘She Said, He Said’ Paradox and the Proof Paradox
• 9. Against the Odds: The Case for a Modal Understanding of Due Care
• 10. Criminal Trials for Preventive Deprivations of Liberty
• Notes on Contributors
• Index