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A Political Approach to Legal Evidence
Kenneth, Tomer
Kenneth, Tomer
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Abstract
Legal evidence is often seen as exceptional. Its focus on facts
distinguishes it from legal fields, and the particular legal
setting in which it operates distances it from other fact-finding
endeavors. This article challenges this view. It argues that legal
evidence is closely connected to political theory. The article explains
the similarities between legal and political decisions about facts: both
are practical decisions, made by state institutions, under conditions of
uncertainty, and aimed at determining the factual basis that underpins
substantive judgements. Given these similarities, legal evidence can
learn a lot from theories that govern political decisions, especially
political decisions about facts. One emerging line of scholarship
political epistemology seems particularly useful for this endeavor.
Unfortunately, existing legal evidence scholarship overlooks these
resources.
Drawing on and developing these insights, this article makes three related
arguments. First, legal evidence has close relations with political theory.
Second and following, legal evidence should focus on the legitimacy,
rather than the accuracy, of decisions about facts. Third, political
epistemology can offer guidance on how to achieve this legitimacy.
The article then employs this political approach to legal evidence. It
developing evidence doctrines such as hearsay and the Confrontation
Clause, jury biases, and epistemic injustices of specific rules. Finally, this
approach also invites legal evidence to improve legal decisions about
facts beyond the Federal Rules of Evidence, including decisions by the
Supreme Court and quasi-judicial institutions.