We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 01 March 2009
In 1966 the U.S. Supreme Court wrote, “The basic purpose of a trial is the determination of truth.” This is Larry Laudan's guiding premise in his “essay on legal epistemology.” Without ascertaining the facts about a crime, he writes, it is impossible to achieve justice, since a just resolution crucially depends on correctly figuring out who did what to whom. Thus, he continues, “it is entirely fitting to ask whether the procedures and rules that govern a trial are genuinely truth-conducive.” In chapter 1 of the book, Laudan identifies one of the most important and legitimate methods for finding truth, namely, ensuring that the jury hears all and only relevant evidence. Laudan bemoans the fact, however, that “legal texts and the practices of courts routinely flout” this principle. Much of the rest of the book is devoted to the other tests for admissibility that the system imposes, tests that Laudan often regards as misguided.
1. Tehan v. United States, 383 U.S. 406, 416 (1966).
2. Larry Laudan, Truth, Error, and Criminal Law: An Essay in Legal Epistemology 2 (2006).
3. Id. at 2.
4. Id. at 18.
5. Id. at 29.
6. Id. at 30.
7. Id. at 63–88.
8. Id. at 32–61.
9. See id. at 136–137.
10. Id. at 119.
11. Id. at 123–124, 128.
12. See id. at 126.
13. Id. at 126–127; see also id. at 144 (“My advice has been to build explicitly into [the standard of proof] every bit of acquittal-friendly bias that society deems appropriate.”).
14. Id. at 145.
15. Id.
16. Id. (emphasis in original).
17. Id.
18. Id. at 147–162.
19. Id. at 150–154.
20. Id. at 157–159.
21. Id. at 160.
22. Id. at 160.
23. Id.
24. Id. at 171–193.
25. Id. at 190.
26. Id. at 175.
27. Id. at 213–230.
28. Id. at 215.
29. See Pardo, Michael S., On Misshapen Stones and Criminal Law's Epistemology, 86 Tex. L. Rev. 347, 372–374 (2007)Google Scholar.
30. U.S. Const. amend. VI.
31. Crawford v. Washington, 541 U.S. 36, 59, 68 (2004).
32. Laudan might dispute that the Supreme Court's sometimes-varying interpretation of the Constitution truly reflects a social contract. This is a subject too weighty to resolve in a book review. Regardless, it can hardly be gainsaid that Americans consider certain exclusionary rules (such as those flowing from the Miranda rule) to be among the bundle of their rights.
33. Laudan, supra note 2, at 17.
34. Id. at 19.
35. Fed. R. Evid. 401.
36. Goldman, Alvin & Shaked, Moshe, An Economic Model of Scientific Activity and Truth Acquisition, 63 Phil. Stud. 31–55 (1991)Google Scholar, reprinted with proofs of theorems in A.I. Goldman, Liaisons: Philosophy Meets the Cognitive and Social Sciences (1992).
37. Notice that the theorem does not say nor imply that an objectively expected increase in truth possession occurs only when subjective likelihoods coincide with objective likelihoods. However, there is no guarantee of an expected increase in truth possession (no matter what the agent's prior) unless there is such matching.
38. See Fallis, Don, Goldman on Probabilistic Inference, 103 Phil. Stud. 223–240 (2002)Google Scholar.
39. Laudan, supra note 2, at 24–25.
40. Id. at 122.
41. Id.; see also id. at 120.
42. Id. at 82–83.
