While courts depend on expert opinions in reaching sound judgments, the role of the expert witness in legal proceedings is associated with a litany of problems. Perhaps most prevalent is the question of under what circumstances should testimony be admitted as expert opinion. We review the changing policies adopted by American courts in an attempt to ensure the reliability and usefulness of the scientific and technical information admitted as evidence. We argue that these admissibility criteria are best seen (...) in a dialectical context as a set of critical questions of the kind commonly used in models of argumentation. (shrink)

Eyewitness testimony is a powerful form of evidence, and this is especially true in the United States criminal legal system. At the same time, eyewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing. In this paper, I offer a close examination of this tension between the enormous epistemic weight that eyewitness testimony is afforded in the United States criminal legal system and the fact that there are important questions about its reliability (...) as a source of evidence. In Sections 1 and 2, I argue that lineups and interrogations often function by way of extracting testimony from an eyewitness through practices that are manipulative, deceptive, or coercive. I then show, in Section 3, that when testimony that is extracted in these ways is given an unwarranted excess of credibility, the eyewitness in question is the victim of what I call agential testimonial injustice. I conclude that since much of the testimony of eyewitnesses is both extracted and given an excess of credibility, there is a fairly widespread form of epistemic injustice being inflicted upon testifiers in the United States criminal legal system. This calls for reforms along both dimensions—lineups and interrogations should go through a witness's epistemic agency, rather than bypassing, exploiting, or undermining it, and the weight of the resulting testimony should be viewed in the broader context of its significant fallibility. (shrink)

Recent work in artificial intelligence has increasingly turned to argumentation as a rich, interdisciplinary area of research that can provide new methods related to evidence and reasoning in the area of law. Douglas Walton provides an introduction to basic concepts, tools and methods in argumentation theory and artificial intelligence as applied to the analysis and evaluation of witness testimony. He shows how witness testimony is by its nature inherently fallible and sometimes subject to disastrous failures. At the same (...) time such testimony can provide evidence that is not only necessary but inherently reasonable for logically guiding legal experts to accept or reject a claim. Walton shows how to overcome the traditional disdain for witness testimony as a type of evidence shown by logical positivists, and the views of trial sceptics who doubt that trial rules deal with witness testimony in a way that yields a rational decision-making process. (shrink)

This article discusses the concept of epistemic authority in the context of English law relating to expert testimony. It distinguishes between two conceptions of epistemic authority, one strong and one weak, and argues that only the weak conception is appropriate in a legal context, or in any other setting where reliance on experts can be publicly justified. It critically examines Linda Zagzebski's defence of a stronger conception of epistemic authority and questions whether epistemic authority is as closely analogous (...) to practical authority as she maintains. Zagzebski elucidates a kind of deference that courts generally, and rightly, try to avoid. Her concept of ‘first person reasons’, however, does capture an important aspect of the deliberations of conscientious legal actors. (shrink)

Through a detailed analysis that draws on work across philosophy, the law, and social psychology, this book shows that, from the very beginning of the American criminal legal process in interrogation rooms to its final stages in front of parole boards, testimony is extracted from individuals through processes that are coercive, manipulative, or deceptive. This testimony is then unreasonably regarded as representing the testifiers’ truest or most reliable selves. With chapters ranging from false confessions and eyewitness misidentifications (...) to recantations from victims of sexual violence and expressions of remorse from innocent defendants at sentencing hearings, it is argued that there is a distinctive epistemic wrong being perpetrated against suspects, defendants, witnesses, and victims. This wrong involves brute State power targeting the epistemic agency of its citizens, extracting false testimony that is often life-shattering, and rendering the victims in question complicit in their own undoing. It is concluded that it is only through understanding what it means to respect the epistemic agency of each participant in the criminal legal system that we can truly grasp what justice demands and, in so doing, to reimagine what is possible. (shrink)

C.A.J. Coady, in his book Testimony: A Philosophical Study (Oxford: Clarendon Press, 1992), offers conditions on an assertion that p to count as testimony. He claims that the assertion that p must be by a competent speaker directed to an audience in need of evidence and it must be evidence that p. I offer examples to show that Coady’s conditions are too strong. Testimony need not be evidence; the speaker need not be competent; and, the statement need (...) not be relevant or directed to someone in need of evidence. I give alternative conditions. Coady was led into the stronger conditions by investigating testimony as it occurs in legal contexts, where special steps are taken to ensure that testimony provides the jury or the judge with evidence by a competent speaker that is relevant to the disputed question of the guilt or innocence of the defendant. (shrink)

Durante los últimos años, el problema de cómo justificar aquellas creencias que se originan en testimonios ha ocupado un lugar central en la epistemología. Sin embargo, muy pocas de esas reflexiones son conocidas en el derecho probatorio. En el presente ensayo analizo la prueba testimonial a la luz de estas reflexiones con el fin de poner de manifiesto los supuestos epistemológicos de algunos principios procesales. En concreto, analizo la legislación colombiana y la estadounidense en el marco de la disputa entre (...) el reduccionismo y el antirreduccionismo en la filosofía del testimonio. Al final sugiero una nueva aproximación epistemológica que replantea los términos de la disputa y que tiene implicaciones importantes para la valoración de la prueba testimonial en los procesos judiciales. (shrink)

We examine the relationship between scientific knowledge and the legal system with a focus on the exclusion of expert testimony from trial as ruled by the Daubert standard in the US.We introduce a simple framework to understand and assess the role of judges as “gatekeepers”, monitoring the admission of science in the courtroom. We show how judges face a crucial choice, namely, whether to limit Daubert assessment to the abstract reliability of the methods used by the expert witness (...) or also to check whether the application of those methods was correct. Undesirable outcomes result from both choices, thereby giving rise to the “gatekeeper’s dilemma.” We illustrate the dilemma by analyzing in some detail two well-known cases of Daubert challenges to economic experts. Finally, we present reasons for the absence of straightforward solutions to the dilemma and for its likely endurance. (shrink)

The standard of proof in criminal trials should require that the evidence presented by the prosecution is robust. This requirement of robustness says that it must be unlikely that additional information would change the probability that the defendant is guilty. Robustness is difficult for a judge to estimate, as it requires the judge to assess the possible effect of information that the he or she does not have. This article is concerned with expert witnesses and proposes a method for reviewing (...) the robustness of expert testimony. According to the proposed method, the robustness of expert testimony is estimated with regard to competence, motivation, external strength, internal strength and relevance. The danger of trusting non-robust expert testimony is illustrated with an analysis of the Thomas Quick Case, a Swedish legal scandal where a patient at a mental institution was wrongfully convicted for eight murders. (shrink)

A consensus in a scientific community is often used as a resource for making informed public-policy decisions and deciding between rival expert testimonies in legal trials. This paper contains a social-epistemic analysis of the high-profile Bendectin drug controversy, which was decided in the courtroom inter alia by deference to a scientific consensus about the safety of Bendectin. Drawing on my previously developed account of knowledge-based consensus, I argue that the consensus in this case was not knowledge based, hence courts’ (...) deference to it was not epistemically justified. I draw sceptical lessons from this analysis regarding the value of scientific consensus as a desirable and reliable means of resolving scientific controversies in public life. (shrink)

We are becoming increasingly dependent on robots and other forms of artificial intelligence for our beliefs. But how should the knowledge gained from the “say-so” of a robot be classified? Should it be understood as testimonial knowledge, similar to knowledge gained in conversation with another person? Or should it be understood as a form of instrument-based knowledge, such as that gained from a calculator or a sundial? There is more at stake here than terminology, for how we treat objects as (...) sources of knowledge often has important social and legal consequences. In this paper, I argue that at least some robots are capable of testimony. I make my argument by exploring the differences between instruments and testifiers on a well-known account of knowledge: reliabilism. On this approach, I claim that the difference between instruments and testifiers as sources of knowledge is that only the latter are capable of deception. As some robots can be designed to deceive, so they too should be recognized as testimonial sources of knowledge. (shrink)

In this paper, I attempt to show the evolution of the concept of testimony in PaulRicoeur’s writing. In the paper “Herméneutique du témoignage” given at theConference of Castelli in 1972 Ricoeur defined “testimony” in legal terms, as atestimony given in the frame of a dispute. In contrast, in “La Mémoire, l’Histoire,l’Oublie”1Ricoeur split testimony from the legal frame and characterized it as adialogical “natural institution.” My first hypothesis is that, even though in the1972 conference he recognized (...) the legal origin of testimony, his definition is notquite the standard one. In order to establish this hypothesis, I will compareRicoeur’s definition with C.A.J. Coady’s understanding of the term to showwhere the differences are and explore the implications of each. Next, I willdiscuss the limitations of the legal definition, and how the concept of testimonywas changed in order to overcome them. I will then show how Ricoeur’s conceptof testimony works in MHO so as to associate memory with history. Finally, Iwill focus on Ricoeur’s revised notion of testimony in his last book Parcours dela reconnaissance, and argue that some of the changes in the definition had anargumentative and not a phenomenological reason. (shrink)

Recent work in artificial intelligence has increasingly turned to argumentation as a rich, interdisciplinary area of research that can provide new methods related to evidence and reasoning in the area of law. Douglas Walton provides an introduction to basic concepts, tools and methods in argumentation theory and artificial intelligence as applied to the analysis and evaluation of witness testimony. He shows how witness testimony is by its nature inherently fallible and sometimes subject to disastrous failures. At the same (...) time such testimony can provide evidence that is not only necessary but inherently reasonable for logically guiding legal experts to accept or reject a claim. Walton shows how to overcome the traditional disdain for witness testimony as a type of evidence shown by logical positivists, and the views of trial sceptics who doubt that trial rules deal with witness testimony in a way that yields a rational decision-making process. (shrink)

Peirce defines the legal expression proximale cause and effect as an “obscure term like most of the terms of Aristotelianism.” He says that students of law and logic should be shocked by thc practicc of justifying the payment of damages in law by reference to a “term in Aristotelian logic or metaphysics.” That such practice does occur underscores and “illustrates the value of PRAGMATISM.” Peirce reminds usthat in English law the term “witness” does not mean a person who testifies (...) to his own experience, “but to facts which he knows by the immediate testimony of others” .Practical law, Peirce suggests, results from persons whose knowledge of the facts of experience are formed in dialogue with others whose experience confirms their own. The dialogue is immediate; the knowledge is mediated through signs. From the viewpoint of Peirce’s pragmatism which he sees as an integral part of his semiotic Methodology or Speculative Rhetoric this paper will assurne that there are distinct types of legal cultures and that each may be regarded as a method of inquiry for the purpose of realizing social values. The relation between Laws and Societies-systems of legalities and legitimacies-will be regarded as culture-specific modes of dialectic. I propose here that Peirce’s Methodology-his method of methods-may account for the way that “patterns of conceptual change retlect the presuppositional structures of conceptual systems” . Within the framework of a semiotics of law I will be looking at various ways the idea of the Legal System has been interpreted. (shrink)

Appraising the worth of others’ testimony is always complex; appraising the worth of expert testimony is even harder; appraising the worth of expert testimony in a legal context is harder yet. Legal efforts to assess the reliability of expert testimony—I’ll focus on evolving U.S. law governing the admissibility of such testimony—seem far from adequate, offering little effective practical guidance. My purpose in this paper is to think through what might be done to offer (...) courts more real, operational help. The first step is to explain why the legal formulae that have evolved over the years may seem reassuring, but aren’t really of much practical use. The next is to suggest that we might do better not by amending evidentiary rules but by helping judges and attorneys understand what questions they should ask about expert evidence. I focus here on (i) epidemiological testimony, and (ii) the process of peer review. (shrink)

I will argue that the underlying rationale for the talmudic list of trades disqualified from legal testimony is aesthetic. These trades involved professional mimicry, which as such incapacitated what R. Neis has termed “homovisuality” or self-referential witnessing in the Talmud. Reading talmudic laws of conjoined testimony and the induction of witnesses in light of Deleuze’s and Blanchot’s philosophy, I will argue that homovisuality entailed the witness’s reincarnation as the subject of the event, thus re-signifying rather than reporting (...) the event. The judge, transformed into a witness, could capture the truth of the event at a glance, in a manner both prior to and irreducible to trial procedures. (shrink)

ArgumentIn the United States, scientific knowledge is brought before the courts by way of testimony – the testimony of scientific experts. We argue that this expertise is best understoodfirstas related to the quality of the underlying scienceand thenin terms of who delivers it. Bloodstain pattern analysis (BPA), a contemporary forensic science, serves as the vaulting point for our exploration of objectivity as a metric for the quality of a science in judicial contexts. We argue that BPA fails to (...) meet the minimal standard set by Helen Longino’s social-procedural account of objectivity (1990, 2002). In light of some pressing issues for social-procedural accounts, we offer an infrastructural account of objectivity. This account offers what amounts to a friendly amendment to Longino’s account and adds to the ways in which we might analyze social-procedural objectivity. Finally, we address an issue that is pressing in the legal context: given that scientific knowledge is delivered by individuals, not communities, at least in U.S. courts, we (may) need a way to evaluate individual scientific and epistemic agents. We suggest a means for making this evaluation that is derived from our infrastructural account of objectivity. (shrink)

Wigmore thought that there was a science of proof underlying legal reasoning that could be displayed in any given case as a graphic sequence of argumentation from the evidence in the case leading to the ultimate probandum. Argumentation technology has now vindicated this approach by providing useful qualitative methods that can be applied to identifying, analyzing, and evaluating the pro and con arguments put forward by both sides in a trial. In this chapter, it is shown how to apply (...) argumentation schemes, such as argument from witness testimony, using argument diagrams applied to typical sequences of evidence-based legal reasoning in which there is a successive refinement of arguments displayed as the evidence comes into a case. It is shown how argument from applying rules to cases, teleological, argument from expert witness testimony, and abductive reasoning are centrally important for this purpose. (shrink)

The past two decades have seen a dramatic growth in the use of statisticians and economists for the presentation of expert testimony in legal proceedings. In this paper, we describe a hypothetical case modeled on real ones and involving statistical testimony regarding the causal effect of lead on lowering the IQs of children who ingest lead paint chips. The data we use come from a well-known pioneering study on the topic and the analyses we describe as the (...) expert testimony are similar to ones that can be found in major scientific journals. The battle of the experts in this hypothetical case resembles that which many encounter as expert witnesses. The paper concludes with some observations and advice. (shrink)

Extensive literatures exist on the epistemology of testimony, memory, and perception, but for the most part these literatures do not systematically consider the extent of the analogies between the three epistemic sources. A number of the same problems reappear in all three literatures, however. Dealing simultaneously with all three sources and making a careful accounting of the analogies and disanalogies between them should therefore avoid unnecessary duplication of effort. Other than limits on the scope of which memorially- and testimonially-based (...) beliefs should be included in the Parity Thesis, I argue that most of the disanalogies that different philosophers have proffered between the sources do not mark distinctions among the universes of possible testimonially-, memorially-, and perceptually-based beliefs regarding the explanation of those beliefs' epistemic status. I first criticize the suggestion that perception is a generative epistemic source, while testimony and memory are not; I propose and defend counterexamples in which testimony and memory produce new beliefs. Next, I criticize a variety of distinctions that have been drawn between testimony and perception, taken chiefly from the reductionist-antireductionist literature on testimony. I criticize the suggestion that the conceptualization of content and the transparency of experience affect the epistemologies of testimony and perception in different ways. Regarding memory and testimony, I advocate modeling testimony on the legal relationship of a principal and an agent, arguing that law's apparatus used to analyze such situations suggests that using others' epistemic services in testimony will supply the same epistemic benefits and burdens as if we had performed those epistemic tasks personally and then relied only on memory. I apply this analysis to the transmission of defeaters in testimony. I argue that memory does feature the epistemic equivalent of a perceptual image and that both perceptually- and memorially-based beliefs can concern either the past or the present. Finally, I construct a set of six transformations that turn individual possible instances of perceptually-, memorially-, or testimonially-based beliefs into individual possible instances of the other two types of beliefs without changing the structure of those beliefs' epistemologies. (shrink)

Current Legal Issues, like its sister volume Current Legal Problems, is based upon an annual colloquium held at University College London. Each year, leading scholars from around the world gather to discuss the relationship between law and another discipline of thought. Each colloqium examines how the external discipline is conceived in legal thought and argument, how the law is pictured in that discipline, and analyses points of controversy in the use, and abuse, of extra-legal arguments within (...) legal theory and practice.Law and Psychology, the latest volume in the Current Legal Issues series, contains a broad range of essays by scholars interested in the interactions between law and psychology. The volume includes studies of jury trials in terrorism cases, psychological evidence in family law cases, child witness testimony and the role of psychology in punishment theory. (shrink)

We argue that legal argumentation, as the subject matter as well as a special subfield of Argumentation Studies (AS), has to be examined by making skilled use of the full panoply of tools such as argumentation and story schemes which are at the forefront of current work in AS. In reviewing the literature, we make explicit our own methodological choices (particularly regarding the place of normative deliberation in practical reasoning) and then illustrate the implications of such an approach through (...) the analysis of a case study in the English law of evidence. We argue that a clear distinction must be drawn between practical argumentation and stories. Because of the institutional separation between legal judgment and fact-finding in common-law jury trials, we argue for the combination of argument and story-based analysis. (shrink)

"This collection is the first book-length examination of the various epistemological issues underlying legal trials. Trials are, among other things, 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. But are trials truth-conducive? Assessing the value of trials as truth-seeking endeavors requires that we consider a host of underlying social epistemological questions. (...) The contributors to this volume address a number of these pressing questions, including but not limited to the following: How much credence should they give to eyewitness testimony? How should we balance the relative epistemic value of testimony offered by defense witnesses and prosecution witnesses? Are juries an effective means of arriving at justified beliefs about a defendant's guilt or innocence? When, if ever, is statistical information about a defendant's character relevant? What degree of certainty should we require to support a verdict of 'guilty'? How should standards of proof be interpreted for allegations that contain numerous discrete components? 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"--. (shrink)

Overgeneralizations by psychologists of the research evidence on memory and eyewitness testimony, such as “memory decays with time” or “memories are fluid and malleable,” are beginning to appear in legal judgements and guidance documents, accompanied by unwarranted disparagement of lay beliefs about memory. These overgeneralizations could have significant adverse consequences for the conduct of civil and criminal law.

Humans are becoming increasingly dependent on the ‘say-so' of machines, such as computers, smartphones, and robots. In epistemology, knowledge based on what you have been told is called ‘testimony' and being able to give and receive testimony is a prerequisite for engaging in many social roles. Should robots and other autonomous intelligent machines be considered epistemic testifiers akin to those of humans? This chapter attempts to answer this question as well as explore the implications of robot testimony (...) for the criminal justice system. Few are in agreement as to the ‘types' of agents that can provide testimony. The chapter surveys three well-known approaches and shows that on two of these approaches being able to provide testimony is bound up with the possession of intentional mental states. Through a discussion of computational and folk-psychological approaches to intentionality, it is argued that a good case can be made for robots fulfilling all three definitions. (shrink)

This article focuses on the epistemic transition to testimonial justice. It argues that the recognition of testimonial injustice in the context of reproductive rights may play a central role in this transition. First, I show how testimonial injustice undermines women’s legal protection against sexual violence and rights triggered by it such as the right to abortion. Second, I argue that the epistemic transition initiated by the #MeToo and #YoSiTeCreo movements call for transitional justice. In support, I review the circumstances (...) of transitional justice for cases like the transition to testimonial justice. Finally, I focus on the area of reproductive rights. I argue that policies of recognition contribute to epistemic transitional justice and complement other strategies aimed to overcome testimonial injustice such as the virtue of the responsible hearer and institutional compensatory virtues. (shrink)

This essay’s principal objective is to examine how, when confronted with a case of possible criminal poisoning, early nineteenth-century English toxicologists sought to generate and to represent their evidence in the courtroom. Its contention is that in both these activities toxicologists were inextricably engaged in a complex communicative exercise. On the one hand, they distanced themselves from the instabilities of language, styling themselves as testifiers to fact alone. But at the same time, they saw themselves as deeply implicated in the (...) difficulties of forging a coherent signifying system out of a disparate collection of signs that in themselves bore no intrinsic meaning. The analysis has three main components: first, to suggest why criminal poisoning featured so prominently in the burgeoning legal literature on evidence which provided the framework for expert testimony in English courts; next, to show that the scientific evidence offered by toxicologists in poisoning cases can be usefully understood as a form of language; and finally, to suggest that this recourse to signs informed the toxicologist’s encounter with another type of courtroom expert—the legal advocate—who was equally interested in manipulating signs in order to construct legally sanctioned proof.Author Keywords: Evidence; Expertise; Poisoning; Testimony; Toxicology. (shrink)

The “plant turn” in anthropology, while controversial, has led to a renewed focus on how humans relate to different species of plants. In this article, I aim to contribute to our knowledge of human-plant relationships by analyzing how historical actors used sacred plants in past ritual settings. I study criminal and civil cases involving shamans in late colonial Ecuador, with a focus on plant use. Legal records from 1782, 1793, 1800, and 1802 reveal information about the use of fragrant (...) plants believed to have transformative properties, the use of entheogens for non-visionary purposes, and even the incorporation of the sacred wanduc (Brugmansia sp) into the punishment of one shaman. This plant-focused approach to the reading of ethnohistorical documents provides a history of particular plants as they were used by individual actors in specific geographic and historical contexts, and sheds light on people’s understanding of human-plant-spirit relationships. (shrink)

Testimony about the future dangerousness of a person has become a central staple of many judicial processes. In settings such as bail, sentencing, and parole decisions, in rulings about the civil confinement of the mentally ill, and in custody decisions in a context of domestic violence, the assessment of a person’s propensity towards physical or sexual violence is regarded as a deciding factor. These assessments can be based on two forms of expert testimony: actuarial or clinical. The purpose (...) of this paper is to examine the scientific and epistemological basis of both methods of prediction or risk assessment. My analysis will reveal that this kind of expert testimony is scientifically baseless. The problems I will discuss will generate a dilemma for factfinders: on the one hand, given the weak predictive abilities of the branches of science involved, they should not admit expert clinical or actuarial testimony as evidence; on the other hand, there is a very strong tradition and a vast jurisprudence that supports the continued use of this kind of expert testimony. It is a clear case of the not so uncommon conflict between science and legal tradition. (shrink)

The ArgumentThis paper provides a historical perspective to one of the liveliest debates in common law courts today — the one over scientific expert testimony. Arguing against the current tendency to present the problem of expert testimony as a late twentieth-century predicament which threatens to spin out of control, the paper shows that the phenomena of conflicting scientific testimonies have been perennial for at least two centuries, and intensely debated in both the legal and the scientific communities (...) for at least 150 years. (shrink)

Professor Imwinkelried has boldly attempted to justify the admissibility of normative ethical expertise in the face of a legal evidentiary rule requiring a scientific basis for expert testimony. Because ethical testimony is inherently unscientific, Professor Imwinkelried prudently focuses his analysis on circumstances where evidentiary requirements are less strict; those involving the legislative rather than adjudicative function of courts and those in which substantive law overrides normally rigorous evidentiary requirements. While both proposals may have merit and are thoughtful (...) and creative, Professor Imwinkelried ultimately fails to provide sufficient doctrinal support or persuasive rationale for his arguments.Professor Imwinkelrieds argument for the admissibility of “expert” normative ethical testimony has two parts. The major proposition is that, when courts are engaged in legislative functions, they should be permitted to consider all sources of information. The assumption that apparently underlies this proposition is that nothing limits courts’ exercise of legislative powers. (shrink)

Resumen: Una de las formas más comunes y menos estudiadas de parcialidad judicial subjetiva es la disminución de la credibilidad otorgada a un testigo debido a un prejuicio identitario implícito del agente judicial. En la epistemología social, este fenómeno ha sido estudiado bajo la rúbrica de la injusticia testimonial. En este ensayo mostramos que para determinar la ocurrencia de un caso de injusticia testimonial en el derecho se deben cumplir tres condiciones que son imposibles de verificar empíricamente y que están (...) basadas en presupuestos psicológicos que han sido puestos en duda en años recientes. Sin la posibilidad de verificar estas condiciones, estamos frente a un tipo de parcialidad judicial indetectable. En su lugar, ofrecemos una nueva forma de entender la injusticia testimonial en el derecho como un fenómeno más general que describe una tendencia comportamental prejuiciosa recurrente por parte de un agente judicial. Entendida de este modo, la injusticia testimonial es completamente verificable. -/- Abstract: One of the most common and least studied forms of subjective judicial partiality is the credibility deficit suffered by a witness due to an implicit identity prejudice in a judicial agent. Social epistemologists have studied this form of partiality under the rubric, “testimonial injustice.” In this essay we argue that to verify the occurrence of a singular instance of testimonial injustice in law three facts must be established, none of which can be established with any degree of confidence. Furthermore, all of them are based on psychological suppositions that have been recently discredited. Without the possibility of establishing these facts, we end up with an undetectable form of subjective judicial partiality. In its place, we offer a new way of understanding testimonial injustice in law as a general phenomenon that describes a recurrent pattern of prejudiced behavior in a judicial agent. Under this characterization, testimonial injustice becomes empirically verifiable. (shrink)

It is rather uncontroversial that gender should have no influence on treating others as equal epistemic agents. However, is this view reflected in practice? This paper aims to test whether the gender of the testifier and the accused of assault is related to the perception of a testimony’s reliability and the guilt of the potential perpetrator. Two experiments were conducted: the subjects (n = 361, 47% females, 53% males) assessed the reliability of the testifier in four scenarios of assault (...) accusation, in which the only difference was the gender of the people presented. During the study, we have observed dependencies of gender and ascription of reliability, but only marginal differences in guilt attribution. The results of our research may constitute an argument for the existence of different epistemic status endowed on people depending on their gender and existing gender stereotypes. Our results suggest that gender bias may be situated at a deeper level than the linguistically triggered representation. (shrink)

We examined the dilemmas posed by the involvement of expert witnesses in court cases and the institutional constraints on the ethics of expert testimony. The causes for the incorporation of bad science into legal decisions, potential solutions to this dilemma, and the limitations of these solutions are considered. We concluded that law, science, and experts must respond to the problems posed by expert witnessing.

Current Legal Issues, like its sister volume Current Legal Problems, is based upon an annual colloquium held at University College London. Each year, leading scholars from around the world gather to discuss the relationship between law and another discipline of thought. Each colloqium examines how the external discipline is conceived in legal thought and argument, how the law is pictured in that discipline, and analyses points of controversy in the use, and abuse, of extra-legal arguments within (...) legal theory and practice.Law and Psychology, the latest volume in the Current Legal Issues series, contains a broad range of essays by scholars interested in the interactions between law and psychology. The volume includes studies of jury trials in terrorism cases, psychological evidence in family law cases, child witness testimony and the role of psychology in punishment theory. (shrink)

This article reflects on the author's modest experience as an expert witness in two trials: Osheroff vs. Greenspan (1983), and In the Matter of Baby K (1994). Bioethicists' expertise as scholar-teachers and consultants on particular issues merits qualification by judges as expert witnesses. The article argues that a different kind of expertise – strong moral advocacy – is required to be an effective expert witness. The major lessons of expert witnessing for the author concern the demands and strains on the (...) bioethicist's role as scholar, teacher, and consultant. The Baby K case is analyzed in some detail, due to its importance for bioethics, ethics consultation, and the testimony of bioethicists on either side of the case. Rules of thumb are offered to guide decisions as to choices regarding expert witnessing, as well as a discussion of the interaction of law and bioethics. (shrink)

This paper considers the ways that concepts such as social justice and law were used as semiotic objects-in-tension by a group of five US undergraduates considering law school to make sense of their ideas about entering the discourse communities and communities of practice associated with being a lawyer. This group was made up of undergraduate women who had completed a summer residency program sponsored by the Law School Admissions Council to increase enrollment of students from under-represented groups. Of the five (...) participants, two were US-born; the others immigrated to the US as teenagers; each was aware of her position as multiply marginalized, by gender as well as other factors, including refugee or immigrant status, religious affiliation, sexual identity, and/or association with “at risk” labeling. Data analyzed reflect a 3-year study of their changing perceptions of their relationships to law school discourse communities, using text, interviews, individual video narratives, and informal, face-to-face group meetings. A sociolinguistic approach to multimodal discourse analysis is used to examine the ways that the women, each in a unique way, articulated an increased investment in direct and embodied engagement, lived experience, and personal testimony—not as supplements to doing/being a lawyer, but as necessary and expected practices therein. Over time and through various modalities, they used their vantage point from outside the dominant discourse communities of law to stage social critique and to contest the binary logic and normative criteria that forge the boundaries of exclusion from and inclusion in these communities. Specifically, they resemiotized notions of being a lawyer from the margins in ways that demanded a more fluid and polysemous interpretation of what it means to do ethically rigorous social justice work—hence reworking the relationships between justice and the law and widening the semiotic potential of their own future work. Particularly significant are the ways that semiotic trajectories progressed from an emphasis on what Halliday identifies as textual functions of language to interpersonal and ideational functions. Such a trajectory away from entextualization suggests that voices and perspectives from the margins may be using those imaginary margins tactically as sites from which to contest the boundaries that define whose voices count within the legal system and to contest normative limits on semiotic potentialities for lawyers working toward more just social futures. (shrink)

Given the risks of misinformation, addressees need to calibrate their trust towards communicators effectively. One way to do this is to evaluate the evidence speakers rely on (their evidential warrant) or claim to have (their evidential claims) when providing testimony. We review key findings in experimental psychology and experimental pragmatics to uncover the mechanisms underlying this form of trust calibration. This will ultimately shed light on the psychological foundations of principles that guide the evaluation of testimony in (...) class='Hi'>legal contexts, such as the law against hearsay. (shrink)

It is well known that experts’ opinion and testimony take on a decisive weight in judicial fact-finding, raising issues and perplexities that have long been under scholarly scrutiny. In this paper I argue that expert’s opinions have a much wider impact on legal decision-making. In particular, they may generate a problem that I will call ‘the opacity of law’. A legal text, such as a statute or regulation, becomes opaque if a legal authority is not able (...) to grasp its full linguistic content but is nevertheless in a position to use it, thanks to an expert’ opinion, in legal decision-making. When this occurs, not only do experts contribute to fact-finding but also to determining the content of the law. In the paper I analyse the linguistic and cognitive sources of this phenomenon, its characteristics and troublesome consequences, and the different kinds of opacity that may affect legal decision-making. (shrink)

This brief essay explores how understanding the treatment of expert evidence requires engaging with its legal and political contexts, and not just focusing on its epistemological aspects. Although the law of evidence and thus its treatment of experts is significantly informed by epistemological considerations, it is also informed by concerns over the organization of trials, larger issues of intelligent governance, social concerns, and enforcement issues. These five aspects to the law of evidence give rise to principles to guide the (...) explicit structuring of the law of evidence that are identified here as well. This complexity helps to explain why the central issue of expert testimony is not the epistemological one of knowledge and belief but instead the conflict between educational and deferential modes of trial. (shrink)

In view of the vital role played by the testimony or witness in detecting and combating corruption crimes, the Saudi Arabia issued a new law for the protection of whistleblowers, witnesses, experts and victims, by Royal Decree No. (M/148) dated 8/8/1445 AH, and since there is a potential threat to those who dare to reporting or witnessing the commission of these crimes, the low dealt with the types and forms of protection provided to them, and this research tries to (...) answer a key question, which is: What types of protections does the Saudi low guarantee to witnesses in corruption cases? This is done by using the descriptive, analytical research methodology, by characterizing and extrapolating the types of protection, and analyzing the texts of the low to identify the types and forms of protection contained therein. The study reached several results, the most important of which are: the interest of the Saudi regulator in protecting witnesses in this type of cases to provide the necessary guarantees for the protection of human rights, as it enacted a set of security, judicial, functional and social guarantees to protect the witness, and organized a number of new measures, including concealing the witness's identity and personal data, not attending him during the trial, and sufficiency, for example, with recordings without the possibility of discussing him. (shrink)

Through the analysis of the discourse of an interpreter-mediated expert witness examination in a Korean criminal courtroom, this paper examines challenges in obtaining evidence from an expert witness through unskilled interpreters and the related complexity of participation status during the multiparty interactions, namely the courtroom examination. This paper, drawing on the participation framework theories, demonstrates how all participants are engaged in negotiation and interpretation of the meaning of the expert testimony. The two unskilled interpreters, who are primarily responsible for (...) interpreting, collaborate with each other in order to achieve communication when they face problems or difficulties in the other’s interpreted rendition. However, despite the collective efforts to accurately obtain and understand the expert evidence accurately, such efforts are not always successful in the absence of skilled interpreters. Based on these findings, this paper argues that a team of unskilled interpreters is not sufficient to accomplish the demanding task of interpreting expert evidence, and further, the court needs to be meticulous about the quality of courtroom interpreting which have potential implications for achieving just legal outcomes. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Kennedy Institute of Ethics Journal 11.4 (2001) 391-400 [Access article in PDF] Bioethics Inside the Beltway A Shooting on Capitol Hill: "The Ruby Satellite System," Mental Illness, and Failure of the American Legal System Peter J. Cohen On 24 July 1998, Russell Eugene Weston, Jr., stormed the United States Capitol, forced his way through a security checkpoint, bypassed a metal detector, and entered the office complex of Representative (...) Tom DeLay (R-TX), the House Majority Whip (Weil 1998). During this period of terror, he shot and killed two officers of the Capitol Police and seriously wounded another as they attempted to end his foray. 1 Weston was severely wounded by several Capital police officers and taken into custody. After being treated for his injuries, he was incarcerated in the District of Columbia. 2On 5 May 1999, Weston was transferred to the Federal Correctional Institute in Butner, North Carolina (United States v. Weston, 69 F. Supp. 2d 99 (D.D.C. 1999), 103), where he remains to this day. He has neither been brought to trial nor received appropriate psychiatric therapy, but continues to be warehoused "in solitary confinement under constant observation... in a psychotic state (United States v. Weston, 255 F.3d 873; LEXIS 16851 (U.S. App. 2001b), 3-4 [LEXIS]). I will briefly detail the legal events responsible for this mad situation and suggest alternative actions that should have been taken at the very onset of the case. Early Chronology Although overtly the crime appeared to be senseless and without any conceivable motivation, Weston believed that his acts were justified and necessary. The story he told to the court-appointed forensic psychiatrist, Sally C. Johnson, M.D., 3 was that while working for NASA in the early 1980s, he had developed a "Ruby Satellite System," a powerful machine that could reverse time. With access to this system, nothing was permanent--the user could simply reverse time and exit from the current scene. However, the "System" was now controlled by cannibals who were developing and spreading "Black Heva," the deadliest disease known to [End Page 391] humankind, similar to HIV or the plague. It resulted from human corpses rotting and turning black. Time was running out, and Weston believed he had to return to override the "Ruby Satellite System" in the Capitol so that he could stem the spread of "Black Heva" and prevent world calamity. He believed that if he were tried, convicted, and even executed, he could simply time reverse himself, place himself in a safe within the Capitol, and subsequently resume his life at whatever point he chose (United States v. Weston, 206 F.3d 9 (D.C. Cir. 2000), 19-20).On 22 April 1999, the district court accepted Dr. Johnson's diagnosis that Weston suffered from paranoid schizophrenia, the symptoms of which were so severe that he would be incapable of understanding the proceedings against him and of assisting in his own defense. On this basis, the court had no difficulty in finding him incompetent to stand trial (U.S. v. Weston 1999, 102).At Weston's initial hearing, Dr. Johnson had testified that medication would be efficacious in treating Weston's delusions: [T]he standard of care in someone suffering from this type of symptom picture would be to treat them with medication.... [T]here is a good likelihood that he'll have a positive response, positive in the sense that his symptoms will diminish in response to treatment.... The potential benefits to treating the defendant far outweigh the risks.... (U.S. v. Weston 1999, 108) The defense presented no expert testimony refuting Dr. Johnson's presentation. The district court then ordered that Weston begin receiving medication in order to render him nondangerous and competent for trial (U.S. v. Weston 1999, 108-9). The Problem Weston refused to be medicated! 4 He has continued to claim that the administration of antipsychotic drugs against his will would violate his Fifth Amendment due process liberty interest in avoiding unwanted bodily intrusion and implicated... (shrink)

Western European liberal democracies have recently enacted laws that prohibit the diffusion of fake news on social media. Yet, many consider that such laws are incompatible with freedom of expression. In this paper, I argue that democratic governments have strong pro tanto reasons to prohibit fake news, and that doing so is compatible with free speech. First, I show that fake news disrupts a mutually beneficial form of epistemic dependence in which members of the public are engaged with journalists. Second, (...) I contend that laws against fake news enhance rather than thwart personal autonomy. If these suggestions are plausible, then the same considerations about truth and autonomy that underpin the value of free speech give us reasons to prohibit fake news. (shrink)

A brain-computer interface technology that can decode the neural signals associated with attempted but unarticulated speech could offer a future efficient means of communication for people with severe motor impairments. Recent demonstrations have validated this approach. Here we assume that it will be possible in future to decode imagined (i.e., attempted but unarticulated) speech in people with severe motor impairments, and we consider the characteristics that could maximize the social utility of a BCI for communication. As a social interaction, communication (...) involves the needs and goals of both speaker and listener, particularly in contexts that have significant potential consequences. We explore three high-consequence legal situations in which neurally-decoded speech could have implications:Testimony, where decoded speech is used as evidence;Consent and Capacity, where it may be used as a means of agency and participation such as consent to medical treatment; andHarm, where such communications may be networked or may cause harm to others. We then illustrate how design choices might impact the social and legal acceptability of these technologies. (shrink)

Memory Detection Tests (MDTs) are a general class of psychophysiological tests that can be used to determine whether someone remembers a particular fact or datum. The P300 MDT is a type of MDT that relies on a presumed correlation between the presence of a detectable neural signal (the P300 “brainwave”) in a test subject, and the recognition of those facts in the subject’s mind. As such, the P300 MDT belongs to a class of brain-based forensic technologies which have proved popular (...) and controversial in recent years. With such tests increasingly being proffered for use in the courtroom — to either support or call into question testimony — it would behoove the legal system to have some systematic framework for ensuring that they are used responsibly. In this paper, I defend one such framework for ensuring that this is the case: the legitimacy enhancing test. According to this test, it is appropriate to make use of technologies such as the P300 MDT whenever doing so would (probably) enhance the legitimacy of the trial. I argue that this test addresses tensions between scientific and legal norms of evidence, and exhibits a number of additional virtues including unification, simplicity and flexibility. Although the test is defended by considering the example of the P300 MDT, its significance is much broader than that. If it has the virtues I claim for it, it should provide a general framework for the responsible use of technologies, and the responsible innovation of social epistemic systems. (shrink)