by Jennifer Lackey
For the past eight months, I’ve been teaching courses at a maximum-security men’s prison in a suburb of Chicago. One of the many surprising outcomes of teaching in this environment is the impact that it has had on some of my philosophical views. So when I was asked to write about this topic for the APA blog, I thought it might be interesting to do so through the lens of one of my philosophical views that has changed because of my prison teaching. This is what I do below with the topic of testimonial injustice.
We are surrounded by goods. Many of these are finite, such as wealth and land and food. Not everyone can own 20 acres, for instance, because there is only a limited amount of land to go around. For some to have a lot of it necessitates that others have a little, or none at all. But other goods don’t limit one another in this way. To give moral praise to one person need not be to deny it to another. We can say equally of Abraham Lincoln, Ida B. Wells, and Martin Luther King Jr. that they are exceptional moral agents. In this way, there is an important sense in which moral praise is an infinite good: there is often enough of it to go around.
In recent years, the issue of testimonial injustice has gained traction in philosophical circles, due in large part to the work of Miranda Fricker. The idea that people can be the victims of injustice by having their testimony rejected or devalued simply because they’re black or female, for instance, is now widely accepted. What is taken to lie at the heart of testimonial injustice is that it stems entirely from receiving a credibility deficit—being treated as less worthy of belief or trust than the evidence suggests—rather than a credibility surplus—receiving more credibility than the evidence warrants. The central reason for this is that credibility is taken to be like moral praise rather than like land: it is an infinite good. If two friends tell me about their vacations this summer, believing that one of them snorkeled in Thailand need not impact my trusting that the other went hiking in Peru. I can give them both as much credibility as I like since not only is there plenty to go around, but giving some of it to one need not take any away from the other. Because of this, it seems it isn’t unjust to give someone more credibility than is owed since this doesn’t deprive someone else of a good that is deserved.
The problem with this picture is this: even goods that are otherwise infinite are scarce when you’re already in a position of powerlessness.
Only one of my students at Stateville is white, all have been convicted of at least one murder, and nearly all of them are serving natural life sentences. Uncoincidentally, never before have I been in an environment where credibility is more under threat. Stories abound of arresting officers, prosecutors, judges, and all-white juries flatly rejecting the testimony of my students, despite evidence to the contrary.
But something that is surprising is that my classroom in the prison also provides one of the clearest examples of how testimonial injustice can arise from a credibility surplus—one where the stakes couldn’t be higher, and the consequences couldn’t be more life-changing.
My student, D, is a musician. He writes songs promoting social activism, using a “piano” he made from cardboard that he keeps tucked under the metal bunkbed in his cell. In my class last term, D was the most vocal Kantian, arguing against all of the utilitarians that it is never morally permissible to use a human life as a means to an end, no matter how much is at stake. D is a voracious reader of anything and everything I give him, frequently saying that the books and articles assigned in my current course on mass incarceration are “like gold,” helping him better understand the social and political forces at work in our lives.
D is also serving an 80-year sentence for a carjacking and murder he was convicted of committing when he was 15 years old. After being brought to the police station as a witness to view a lineup of suspects, he was separated from his father, interrogated by multiple white police officers without the presence of counsel, and ultimately confessed to murdering an elderly woman in a carjacking. Once he was reunited with his family, D recanted his confession.
Typically, when we talk about distributing credibility, we have in mind doing so across different people. If a woman says she was assaulted and the accused assailant denies this, then the question is: which person do we believe? But in a case like D’s, we are talking about distributing credibility across different times in the life of the same person. There is the earlier, confessing D and the later, recanting D. The question then becomes, which D do we believe: his earlier or later self?
Given that D was convicted of the murder in large part on the basis of the confession, there can be no doubt that the court went with the confessing D. But what I want to do here is take a closer look at all of the reasons for thinking that false confessions are a core case of testimonial injustice based on a credibility surplus—where earlier selves are given more credibility than they deserve, often leading to wrongful convictions.
One of the first things to note is the simple fact that there are false confessions and that far too often they lead to wrongful convictions. Since 1989, there have been 337 post-conviction DNA exonerations in the United States. Focusing only on homicide cases, false confessions are the leading factor involved in wrongful convictions, contributing to 71, or 63%, of the 113 homicide cases among these DNA exonerations.
We also know that there are many factors that clearly contribute to people falsely confessing to crimes that they didn’t commit. Some false confessions arise because the suspects are vulnerable or weak, such as juveniles or those with intellectual impairments; others are the result of the situational features of the interrogation, such as lengthy sessions, fatigue, threats, and promises.
Moreover, convictions based on false confessions are often facilitated by the very innocence of the suspect. Awareness of one’s own innocence leads people not only to waive their Miranda rights to silence and to counsel, but also to be more open and forthcoming in their interactions with police. If you have nothing to hide, you might wonder why you should remain silent and get an attorney. Yet it is not uncommon for the testimony of the innocent to be used against them, such as by calling into question their reliability or sincerity on the basis of minor inaccuracies. In addition, when a suspect confesses, this often leads the police to regard the case as solved, thereby closing the investigation and increasing the likelihood of overlooking exculpatory evidence.
All of this highlights the causes and effects of false confessions, but it does not yet speak to why confessing selves might be given a credibility surplus. And notice just how crucial it is to address this. For convictions based largely on false confessions can’t be explained simply by pointing to the fact that recanting selves receive a credibility deficit. In many cases, if you subtract the confession, you lose the conviction, too. So, for instance, even if a juvenile’s testimony of innocence at a later time is rejected, what is often also needed to convince a jury of his guilt is the veracity of the original confession. Put bluntly, calling the recanter a liar isn’t enough for a conviction—the confessor also needs to be regarded as a truthteller.
The first, and perhaps most obvious, reason why the testimony of confessors is privileged is that most of us find it very difficult to imagine ourselves confessing to something we didn’t do, and so we conclude that the suspect must be guilty. The problem with this is that there is ample psychological research showing otherwise. To name just one of many studies, 69% of the participants in a well-known experiment by Kassin and Keichel falsely confessed to causing a computer program to crash after being accused of doing so .
Another reason we favor the confessor over the recanter is that false confessions affect the perceptions of others, including eyewitnesses, alibi witnesses, and forensic experts. In one study, 61% of those who had witnessed a staged theft changed their identifications after learning that certain lineup members had confessed. In another study, only 45% of participants maintained their support of an alibi for a suspect after being told that she confessed to stealing money, a number that dropped to 20% when the experimenter suggested that their support might imply their complicity with the alibi. What this data shows is that false confessions not only mislead in the first instance, they also beget additional misleading evidence downstream. When this is combined with how counterintuitive false confessions seem to many, including judges and jurors, conditions become optimal for wrongful convictions.
The mere fact that two people disagree, even about matters of fact, does not by itself require that credibility be finite between them. I may tell you that a local restaurant is open while someone else tells you it’s not. That we offer competing reports here does not require that only one of us be deemed worthy of trust or belief: you can be credible, even if wrong on a particular occasion, and I can lack credibility, even if right in a one-off case. Many disagreements are the product of innocent mistakes or lack of information, and so there can still be enough credibility to go around.
It’s precisely when someone’s credibility itself is on the line that its finitude rears its head. False confessions provide the clearest case here: when someone confesses to murder and then recants shortly thereafter, there are no errors or gaps in evidence to explain the disagreement away. To give credibility to the confessing self is ipso facto to deny it to the recanting self. Credibility becomes scarce.
But false confessions also uniquely pit one against oneself, and reveal how a surplus in credibility can lead to some of the most egregious kinds of wrongs. Privileging the testimony of a confessing self in the absence of powerful evidence to do so—especially in the face of all that we know about the causes and effects of false confessions—results in a distinctive kind of testimonial injustice, one that D and many others like him know all too well.
Jennifer Lackey is the Wayne and Elizabeth Jones Professor of Philosophy and Director of Graduate Studies in the Department of Philosophy at Northwestern University. Most of her research lies in the area of social epistemology.
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