A Political Approach to Legal Evidence

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.