Credibility Deficits, Memory Errors and the Criminal Trial

Abstract

Listen

Translate article

Work on testimonial injustice has highlighted how people can suffer credibility deficits—being given less credibility than they would otherwise—due to their social identity. The focus in this previous work has been on how prejudice, in particular, can lead to credibility deficits that involve significant epistemic and practical harms. In this chapter, I show how similar effects can be produced in the absence of prejudice, as a result of stereotypes colliding with misleading evidence about the reliability and sincerity of testifiers in criminal trials. The credibility deficit occurs due to jurors or judges responding inappropriately to memory errors, which are taken to provide evidence of untrustworthiness or unreliability when they really occur due to the ordinary operation of cognitive systems that in fact support the testifier being good at providing high-quality testimony. I emphasise how members of certain social groups, already stereotyped as untrustworthy or unreliable, are especially likely to suffer this type of credibility deficit due to the operation of stereotypes relating to their social identity. Because the credibility deficit does not involve prejudice as defined by Fricker, it does not fall under her definition of testimonial injustice. I conclude by arguing that this means that we ought to either expand the notion of testimonial injustice or, preferably, recognise a new type of credibility deficit that produces similar epistemic and practical harms to testimonial injustice, has previously gone unnoticed and could be having serious detrimental effects on the operation of criminal justice systems.