Less evidence, better knowledge.

AuthorEhrenberg, Kenneth M.
PositionEvidence exclusion standards

In his 1827 work Rationale of Judicial Evidence, Jeremy Bentham famously argued against exclusionary rules such as hearsay, preferring a policy of "universal admissibility" unless the declarant is easily available. Bentham's claim that all relevant evidence should be considered with appropriate instructions to fact finders has been particularly influential among judges, culminating in the "principled approach" to hearsay in Canada articulated in R. v. Khelawon. Furthermore, many scholars attack Bentham's argument only for ignoring the realities of juror bias, admitting universal admissibility would be the best policy for an ideal jury. This article uses the theory of epistemic contextualism to justify the exclusion of otherwise relevant evidence, and even reliable hearsay, on the basis of preventing shifts in the epistemic context. Epistemic contextualism holds that the justification standards of knowledge attributions change according to the contexts in which the attributions are made. Hearsay and other kinds of information the assessment of which rely upon fact finders' more common epistemic capabilities push the epistemic context of the trial toward one of more relaxed epistemic standards. The exclusion of hearsay helps to maintain a relatively high standards context hitched to the standard of proof for the case and to prevent shifts that threaten to try defendants with inconsistent standards.

Dans son ouvrage Rationale of Judicial Evidence publie en 1827, Jeremy Bentham denonce les regies d'exclusion, notamment concernant le ouidire, leur preferant une politique d'>, sauf si le declarant est facilement retrouvable. Sa these, selon laquelle les enqueteurs, ayant recu des instructions appropriees, devraient examiner toute preuve pertinente, a ete particulierement influente sur les juges, culminant avec l'approche raisonnee a l'egard du ou'i-dire articulee dans R. c. Khelawon. Plusieurs chercheurs critiquent la proposition de Bentham seulement en ce qu'elle ignore le biais chez les jures; ils concedent que l'admissibilite universelle conviendrait un jury ideal. Cet article se fonde sur la theorie du contextualisme epistemique afin de justifier l'exclusion de preuve qui ?erait autrement pertinente, du fait que cela eviterait les variations dans le contexte epistemique. Le contextualisme epistemique soutient que les standards justifiant l'assignation des connaissances changent en fonction du contexte de la determination de ces assignations. Ainsi, les ouidire, et autres genres d'information dont l'evaluation depend des capacites epistemiques des enqueteurs ancrees dans le sens commun, tendent a assouplir les normes epistemiques d'un proces. L'exclusion de la preuve par oui-dire permet done de maintenir un contexte epistemique relativement exigeant, arrime a la norme de preuve applicable au cas donne. Elle permet d'empecher les variations qui font encourir au defendeur le risque d'etre juge selon des normes incompatibles avec le contexte.

Introduction I. Bentham's Critique II. Impact of Bentham's Critique III. Knowledge Attributions IV. Contextualism V. Courtroom VI. Objections, Replies, and Applications Conclusion Introduction

At least since Bentham, there has been a well-known and influential criticism of exclusionary rules in evidence law. (1) The criticism goes something like this: people have a natural way of coming to knowledge, which does not use formal rules to exclude some pieces of information from consideration. Instead, people freely consider all relevant information and give each piece the weight it deserves based on its reliability and degree of relevance. Information may still be excluded from consideration, but it is excluded after a judgment is made as to its particular characteristics and value. Evidence law artificially excludes much relevant and valuable information on the basis of rules that are partially doing this assessment for the fact finder. These rules may be designed to avoid the prejudices of juries, but that could effectively be accomplished by a more careful screening and training process. (2) Furthermore, such rules certainly should not apply to judges themselves.

The influence of this criticism cannot be overstated. (3) Even writers who argue against Bentham tend to do so by taking issue with its practicality, (4) saying that while an ideal juror might be trainable to give all relevant information its proper weight, actual jurors are too deficient and the resources of time and money are too limited to perform the necessary training. On the other hand, judges themselves see the Benthamite critique as a reason for them to ignore the rules of evidence when they are sitting at bench trials, (5) considering themselves to be closer to the ideal fact finder and believing themselves more able to assign all relevant information its proper weight. (6) This is reinforced by the wide latitude afforded judges in implementing the rules, in many cases by the rules themselves. (7)

In this paper I argue that the push toward judicial discretion and "universal admissibility" (8) (also called "free proof" (9)) has costs of which reformers were unaware. Moving toward a universal admissibility standard and increasing judicial discretion sacrifices the promise that legal conclusions will be reached on a uniform standard of knowledge reproducible across cases. This in turn jeopardizes the promise of justice, especially in criminal trials where defendants are not being tried according to uniform justificatory standards.

While these are the ultimate practical worries, the bulk of the paper will be devoted to developing the epistemological argument that the inclusion of certain kinds of information, the prime example being hearsay, can lower the standards for what counts as knowledge, essentially making it too easy to justify attributions of knowledge. In that, it is a philosophical argument with a practical conclusion once the impact of the argument on evidentiary practices is understood. The claim is that there are objective but variable standards of justification for knowledge and that one factor in this variability is the kind of information presented to the fact finder.

Hence, given our desire for uniformity in the standards for knowledge across cases, evidentiary exclusions like hearsay are useful tools for limiting the variability in justification. We want to maintain high standards for what is to count as knowledge in the courtroom, and evidentiary exclusions can help us do that.

A few caveats are in order before we begin. (10) There has been plenty of ink spilled over discoveries in the psychology of how people treat evidence and the application of these discoveries to evidence law. (11) For the most part, these studies and their implications are not directly relevant to the points advanced in this paper. Since this paper is about the implications of epistemological theory for evidence law, the point it makes does not hang upon the psychological ability or inability of fact finders to treat evidence in a certain way. Rather, the point is that there are objective epistemic standards for what is to count as knowledge, which evidence law should be seeking to replicate in determinations of admissibility.

This is not to say that the reliability of information is irrelevant to admissibility, but that the epistemic standards at play ought also to be an important factor in fashioning and deploying the rules of admissibility. While empirical psychological research may point away from the utility of certain exclusions, I argue that there are still important philosophical reasons for maintaining those exclusions. (12)

Another caveat is that the argument presented is mainly aimed against the trend toward finding more hearsay to be admissible. However, the philosophical points raised here could also be used to criticize the relaxations of certain other exclusions. In the United States, for example, Federal Rule 903 has abolished the need for a subscribing witness to authenticate documentary evidence unless the jurisdiction otherwise requires it (some U.S. states, for example, still require attestation for wills to be admissible (13)). This allows documentary evidence to speak for itself in much the same way that jurors are likely to encounter such documents outside the courtroom. Similarly, Federal Rule 1003 allows for reliable duplicates of documents to be admitted instead of originals unless there is a "genuine question" raised about the authenticity of the originals. Federal Rule 1004 through 1007 provide for other ways to present the content of documents when originals are not available or otherwise not necessary.

We can say that these exceptions and those discussed below with regard to the admissibility of hearsay derogate from the best evidence rule. (14) Since one could see the best evidence rule itself as partially providing for the special epistemic context of the courtroom, such exceptions and limitations will tend to blur the epistemic line between the courtroom context and the mundane epistemic contexts we usually find ourselves in outside the court.

  1. Bentham's Critique

    Bentham classified evidence law as "adjective" law, grouping it with procedure and distinguishing it from "substantive" law. (15) As a part of procedure, its primary object was to allow decisions to be reached that conform to substantive law with a minimum of the "inconveniences... of delays, vexations, and expense." (16) However, Bentham saw an essential tension between substantive law and adjective law in that the latter can be used to reach a conclusion that would contradict what the substantive law seems to promise. (17)

    Bentham himself notes that the habitual reception of reliable information by others in daily discourse induces a general "disposition to believe" the testimony of others. (18) Of course there are sufficient instances of deception for there also to be a disposition to doubt, but this is the...

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