About The Workshop
SW 34- The Values of Legal Testimony. Epistemology and Morality of Testimonial Evidence
Convenors: Elena Marchese, Michele Ubertone,
Workshop Participants: Giovanni Tuzet, Damiano Canale, Bojan Spaić, Flavia Carbonell, Federico Picinali, Talita Ferrantelli
Contact: michele.ubertone@maastrichtuniversity.nl
Under what conditions is it justified to rely on another person’s word in order to establish a fact in court? Are these conditions purely epistemic or also moral? And are they different from those that justify our reliance on testimony in ordinary contexts? And if so, why? What kinds of adaptations, if any, do theories of testimony developed within general epistemology require in order to be applicable to the legal domain?
This workshop examines these questions from three perspectives, each of which points to a possible way of assessing whether legal testimony displays epistemically distinctive features when compared to ordinary testimony.
Perception, inference, and legal classification
The role of the witness is typically conceived as that of reporting the contents of their autobiographical memory, thereby making available to the court facts and events they have directly perceived. The eyewitness is expected to confine themselves to this task: they should not express opinions, formulate inferences or interpretations, or rely on hearsay. By contrast, the expert witness is precisely authorised to do what the lay witness is barred from doing: expressing opinions, drawing inferences and interpretations, and connecting the facts known to the court with other facts of which they typically have no direct knowledge, but knowledge derived from study and research.
Both the mnemonic-perceptual function of the lay witness and the inferential function of the expert are in turn distinguished from other cognitive operations that are supposed to be performed autonomously by the court and not delegated to others. These include the legal classification of facts, the attribution of responsibility to individuals, and the determination of the level of certainty required for a fact to count as legally proven. But is this precise division of epistemic labour feasible? And is it desirable? Is it either possible or normatively appropriate for courts to remain impermeable to moral arguments advanced by witnesses and experts, or to prevent lay witnesses from engaging even in purely factual inferences?
Fairness and rationality
To what extent does the way we treat a witness depend on our values? And what values should govern testimony in the legal domain if any? What is the relationship between fairness and rationality in the legal evaluation of testimony? The introduction of the notion of epistemic injustice into the philosophy of legal evidence has given these questions renewed relevance. In many cases, the very same judicial behaviour appears to constitute a failure both at the epistemic and at the moral level. Discriminatory attitudes may lead us to undervalue reliable testimonies (or overvalue unreliable ones) while the refusal to accept the interpretative frameworks offered by a witness may amount to a form of hermeneutic injustice. Other times situations may arise where the fulfillment of an epistemic value may entail breaching a moral value or vice versa.
Humans and machines
If the opinions and interpretations surrounding the narration of facts were epistemically irrelevant, the ideal witness would seem to be a machine. Much like Montesquieu’s ideal judge, the ideal witness would, on this view, aspire to function as an automaton. Whereas the formalist’s ideal judge is the mouth of the law, the ideal witness would be the mouth of facts. Yet can we trust machines in the same way we trust human witnesses? A negative answer may be grounded in the idea that trust in testimony does not rest solely on the capacity to store and report facts, but also on normative and relational elements that are not purely epistemic in nature.
Damiano Canale, Bocconi University.
Flavia Carbonell, University of Chile.
Talita Ferrantelli, LSE, London.
Elena Marchese, Genoa University.
Federico Picinali (to be confirmed).
Boian Spaiç, Belgrade University.
Giovanni Tuzet, Bocconi University.
Michele Ubertone, Maastricht University.
