Evidential reasoning, testimonial injustice and the fairness of the criminal trial

Abstract

The article argues that the assessment of the relevance and of the probative value of an item of evidence is susceptible to an evaluation on moral grounds (such as fairness), rather than just to an evaluation on epistemic grounds (such as accuracy). In particular, the article shows that an assessment of relevance and of probative value is unfair, and renders the trial unfair, when this assessment instantiates epistemic injustice of the testimonial kind; and that it instantiates such an injustice when, due to identity prejudice against a social group to which one of the parties in the proceedings belongs, the evidence is assessed without considering the experience and stock of knowledge of thisparty. The article offers several examples of this phenomenon. The upshot is that higher courts, whose role includes checking that proceedings have been fair, should dirty their hands more readily than they are currently doing with the evidential reasoning of the first-instance adjudicator. However, the focus should be on preventing unfairness, rather than treating it.