McGill Law Journal Revue de droit de McGill
LESS EVIDENCE, BETTER KNOWLEDGE
Kenneth M. Ehrenberg*
In his 1827 work Rationale of Judicial Evi-
dence, Jeremy Bentham famously argued against
exclusionary rules such as hearsay, preferring a
policy of universal admissibility unless the de-
clarant is easily available. Benthams claim that all
relevant evidence should be considered with ap-
propriate instructions to fact finders has been par-
ticularly influential among judges, culminating in
the principled approach to hearsay in Canada ar-
ticulated in R. v. Khelawon. Furthermore, many
scholars attack Benthams argument only for ig-
noring the realities of juror bias, admitting univer-
sal admissibility would be the best policy for an
ideal jury. This article uses the theory of epistemic
contextualism to justify the exclusion of otherwise
relevant evidence, and even reliable hearsay, on
the basis of preventing shifts in the epistemic con-
text. Epistemic contextualism holds that the justi-
fication standards of knowledge attributions
change according to the contexts in which the at-
tributions are made. Hearsay and other kinds of
information the assessment of which rely upon fact
finders more common epistemic capabilities push
the epistemic context of the trial toward one of
more relaxed epistemic standards. The exclusion of
hearsay helps to maintain a relatively high stand-
ards context hitched to the standard of proof for
the case and to prevent shifts that threaten to try
defendants with inconsistent standards.
Dans son ouvrage Rationale of Judicial Evi-
dence publi en 1827, Jeremy Bentham dnonce les
rgles dexclusion, notamment concernant le ou-
dire, leur prfrant une politique d admissibilit
universelle , sauf si le dclarant est facilement re-
trouvable. Sa thse, selon laquelle les enquteurs,
ayant reu des instructions appropries, devraient
examiner toute preuve pertinente, a t particuli-
rement influente sur les juges, culminant avec
lapproche raisonne lgard du ou-dire articule
dans R. c. Khelawon. Plusieurs chercheurs criti-
quent la proposition de Bentham seulement en ce
quelle ignore le biais chez les jurs; ils concdent
que ladmissibilit universelle conviendrait un jury
idal. Cet article se fonde sur la thorie du contex-
tualisme pistmique afin de justifier lexclusion de
preuve qui serait autrement pertinente, du fait que
cela viterait les variations dans le contexte pis-
tmique. Le contextualisme pistmique soutient
que les standards justifiant lassignation des con-
naissances changent en fonction du contexte de la
dtermination de ces assignations. Ainsi, les ou-
dire, et autres genres dinformation dont
lvaluation dpend des capacits pistmiques des
enquteurs ancres dans le sens commun, tendent
assouplir les normes pistmiques dun procs.
Lexclusion de la preuve par ou-dire permet donc
de maintenir un contexte pistmique relativement
exigeant, arrim la norme de preuve applicable
au cas donn. Elle permet dempcher les varia-
tions qui font encourir au dfendeur le risque dtre
jug selon des normes incompatibles avec le con-
texte.
* Kenneth M. Ehrenberg, J.D., Ph.D. is Assistant Professor of Philosophy and Adjunct
Professor of Law at the University of Alabama. He would like to thank James Beebe,
John Gardner, John Hawthorne, Mike Pardo, Fred Schauer, Neil Williams, and Chase
Wrenn, as well as the Oxford Jurisprudence Discussion Group and the Law Faculty at
the University of Western Ontario for invaluable discussions and comments. He would
also like to thank the Oxford Centre for Ethics and Philosophy of Law for the HLA Hart
Visiting Fellowship, during which the initial ideas for this paper were developed.
Citation: (2015) 60:2 McGill LJ 173 Rfrence : (2015) 60 : 2 RD McGill 173
Kenneth M. Ehrenberg 2015
(2015) 60:2 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
174
Introduction
I.
Benthams Critique
II.
Impact of Benthams Critique
III.
Knowledge Attributions
IV.
Contextualism
V.
Courtroom
VI.
Objections, Replies, and Applications
Conclusion
175
179
180
183
187
196
204
213
LESS EVIDENCE, BETTER KNOWLEDGE 175
Introduction
At least since Bentham, there has been a well-known and influential
criticism of exclusionary rules in evidence law.1 The criticism goes some-
thing like this: people have a natural way of coming to knowledge, which
does not use formal rules to exclude some pieces of information from con-
sideration. Instead, people freely consider all relevant information and
give each piece the weight it deserves based on its reliability and degree of
relevance. Information may still be excluded from consideration, but it is
excluded after a judgment is made as to its particular characteristics and
value. Evidence law artificially excludes much relevant and valuable in-
formation on the basis of rules that are partially doing this assessment for
the fact finder. These rules may be designed to avoid the prejudices of ju-
ries, but that could effectively be accomplished by a more careful screen-
ing and training process.2 Furthermore, such rules certainly should not
apply to judges themselves.
The influence of this criticism cannot be overstated.3 Even writers who
argue against Bentham tend to do so by taking issue with its practicality,4
saying that while an ideal juror might be trainable to give all relevant in-
formation its proper weight, actual jurors are too deficient and the re-
sources of time and money are too limited to perform the necessary train-
ing. On the other hand, judges themselves see the Benthamite critique as
a reason for them to ignore the rules of evidence when they are sitting at
1 See Jeremy Bentham, A Treatise on Judicial Evidence (London: Baldwin, Cradock, and
Joy, 1825); Jeremy Bentham, Rationale of Judicial Evidence, Specially Applied to Eng-
lish Practice (London: Hunt and Clarke, 1827); William Twining, Theories of Evidence:
Bentham and Wigmore (London & Stanford: Weidenfeld & Nicolson & Stanford Uni-
versity Press, 1985); WL Twining, Benthams Writings on Evidence (1986) 10 The
Bentham Newsletter 34.
2 Some have even used Bentham and other philosophers to argue that the exclusion of
evidence impermissibly violates fact finders autonomy. See generally Todd E Pettys,
The Immoral Application of Exclusionary Rules (2008) 2008:3 Wis L Rev 463.
3 See Ferguson v Georgia, 365 US 570 at 575, 81 S Ct 756 (27 March 1961) [Ferguson]
(taking into consideration the movement toward inclusion spurred by the criticism of
Bentham and others). See also James H Chadbourn, Bentham and the Hearsay Rule:
A Benthamic View of Rule 63 (4)(C) of the Uniform Rules of Evidence (1962) 75:5 Harv
L Rev 932 at 933 (arguing the influence did not extend to hearsay lawa complaint
that seems to have since been rectified). Wigmore was also a devotee of these critiques:
see John Henry Wigmore, The Principles of Judicial Proof as Given by Logic, Psycholo-
gy, and General Experience and Illustrated in Judicical Trials (Boston: Little, Brown,
1913). See also George F James, The Role of Hearsay in a Rational Scheme of Evi-
dence (19391940) 34:7 Ill L Rev 788; Jack B Weinstein, Probative Force of Hearsay
(1961) 46:2 Iowa L Rev 331.
4 See The Theoretical Foundation of the Hearsay Rules, Note, (1980) 93:8 Harv L Rev
1786 at 1787. One exception is Frederick Schauer, In Defense of Rule-Based Evidence
Lawand Epistemology Too (2008) 5:3 Episteme 295.
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176
bench trials,5 considering themselves to be closer to the ideal fact finder
and believing themselves more able to assign all relevant information its
proper weight.6 This is reinforced by the wide latitude afforded judges in
implementing the rules, in many cases by the rules themselves.7
In this paper I argue that the push toward judicial discretion and
universal admissibility8 (also called free proof9) has costs of which re-
formers were unaware. Moving toward a universal admissibility standard
and increasing judicial discretion sacrifices the promise that legal conclu-
sions will be reached on a uniform standard of knowledge reproducible
across cases. This in turn jeopardizes the promise of justice, especially in
criminal trials where defendants are not being tried according to uniform
justificatory standards.
While these are the ultimate practical worries, the bulk of the paper
will be devoted to developing the epistemological argument that the inclu-
sion of certain kinds of information, the prime example being hearsay, can
lower the standards for what counts as knowledge, essentially making it
too easy to justify attributions of knowledge. In that, it is a philosophical
argument with a practical conclusion once the impact of the argument on
evidentiary practices is understood. The claim is that there are objective
but variable standards of justification for knowledge and that one factor
in this variability is the kind of information presented to the fact finder.
5 See e.g. Frederick Schauer, On the Supposed Jury-Dependence of Evidence Law
(2006) 155 U Pa L Rev 165 at 166, n 3; Mark I Bernstein, Expert Testimony in Penn-
sylvania (1995) 68:2 Temp L Rev 699 at 71213. This is especially true when it comes
to hearsay, the main focus of this paper. See Eleanor Swift, The Hearsay Rule at Work:
Has It Been Abolished De Facto by Judicial Decision? (1992) 76 Minn L Rev 473 at
49098 (overview of United States federal court techniques used to justify the admis-
sion of crime victims hearsay, particularly children); Michael L Seigel, Rationalizing
Hearsay: A Proposal for a Best Evidence Hearsay Rule (1992) 72 BUL Rev 893 at 895.
6 There is more than a little irony in this considering Benthams hostility to judge-made
law (see Schauer, In Defense, supra note 4 at 301).
7 For Benthams continuing influence in modern United States evidence law, see e.g. Fer-
guson, supra note 3 at 575. See also Fed R Evid 807 (allowing judges to ignore the hear-
say exclusion entirely even when exceptions stated in Fed R Evid 803 or 804 are not
present [Fed R Evid are referred to in text as Federal Rules]). In Canada this is exem-
plified by the principled approach to hearsay (see e.g. Ares v Venner, [1970] SCR 608, 14
DLR (3d) 4; R v Khan, [1990] 2 SCR 531, 59 CCC (3d) 92 [Khan cited to SCR]; R v
Smith, [1992] 2 SCR 915, 94 DLR (4th) 590 [Smith cited to SCR]; R v Starr, 2000 SCC
40, [2000] 2 SCR 144 [Starr]; R v Khelawon, 2006 SCC 57, [2006] 2 SCR 787
[Khelawon]; R v Devine, 2008 SCC 36, [2008] 2 SCR 283; R v Blackman, 2008 SCC 37, 2
SCR 298).
8 Bentham, Rationale, supra note 1, vol 3 at 541.
9 William Twining, Rethinking Evidence: Exploratory Essays, 2nd ed (Cambridge: Cam-
bridge University Press, 2006) at 210.
LESS EVIDENCE, BETTER KNOWLEDGE 177
Hence, given our desire for uniformity in the standards for knowledge
across cases, evidentiary exclusions like hearsay are useful tools for limit-
ing the variability in justification. We want to maintain high standards
for what is to count as knowledge in the courtroom, and evidentiary ex-
clusions can help us do that.
A few caveats are in order before we begin.10 There has been plenty of
ink spilled over discoveries in the psychology of how people treat evidence
and the application of these discoveries to evidence law.11 For the most
part, these studies and their implications are not directly relevant to the
points advanced in this paper. Since this paper is about the implications
of epistemological theory for evidence law, the point it makes does not
hang upon the psychological ability or inability of fact finders to treat evi-
10 I thank an anonymous reviewer for this journal for pointing out the need to emphasize
these caveats.
11 See e.g. the many papers in Daniel Kahneman, Paul Slovic & Amos Tversky, Judgment
under Uncertainty: Heuristics and Biases (Cambridge: Cambridge University Press,
1982); Chip Heath & Amos Tversky, Preference and Belief: Ambiguity and Compe-
tence in Choice under Uncertainty (1991) 4:1 J Risk & Uncertainty 5; Stephan Lands-
man & Richard F Rakos, Research Essay: A Preliminary Empirical Enquiry Concern-
ing the Prohibition of Hearsay Evidence in American Courts (1991) 15 Law & Psychol
Rev 65; Dale Griffin & Amos Tversky, The Weighing of Evidence and the Determi-
nants of Confidence (1992) 24:3 Cognitive Psychology 411; Margaret Bull Kovera, Rog-
er C Park & Steven D Penrod, Jurors Perceptions of Eyewitness and Hearsay Evi-
dence (1992) 76:3 Minn L Rev 703; Peter Meine, Roger C Park & Eugene Borgida, Ju-
ror Decision Making and the Evaluation of Hearsay Evidence (1992) 76:3 Minn L Rev
683; Kerri L Pickel, Inducing Jurors to Disregard Inadmissible Evidence: A Legal Ex-
planation Does Not Help (1995) 19:4 Law & Human Behavior 407; Regina A Schuller,
Expert Evidence and Hearsay: The Influence of Secondhand Information on Jurors
Decisions (1995) 19:4 Law & Human Behavior 345; Joel Cooper, Elizabeth A Bennett
& Holly L Sukel, Complex Scientific Testimony: How Do Jurors Make Decisions?
(1996) 20:4 Law & Human Behavior 379; Angela Paglia & Regina A Schuller, Jurors
Use of Hearsay Evidence: The Effects of Type and Timing of Instructions (1998) 22:5
Law & Human Behavior 501; David Dunning, On the Social Psychology of Hearsay
Evidence (1999) 5:2 Psychol Pub Poly & L 473; Lucy S McGough, Hearing and Believ-
ing Hearsay (1999) 5:2 Psychol Pub Poly & L 485; William C Thompson & Maithilee K
Pathak, Empirical Study of Hearsay Rules: Bridging the Gap Between Psychology and
Law (1999) 5:2 Psychol Pub Poly & L 456; Chris Guthrie, Jeffrey J Rachlinski & An-
drew J Wistrich, Inside the Judicial Mind (2001) 86:4 Cornell L Rev 777; Gary L Wells
& Elizabeth A Olson, Eyewitness Testimony (2003) 54 Annual Rev Psychology 277;
Jacqueline P Leighton & Robert J Sternberg, eds, The Nature of Reasoning (Cambridge:
Cambridge University Press, 2004); Dae Ho Lee, Daniel A Krauss & Joel Lieberman,
The Effects of Judicial Admonitions on Hearsay Evidence (2005) 28 Intl J L & Psychi-
atry 589; Wim De Neys, Dual Processing in Reasoning: Two Systems but One Reason-
er (2006) 17:5 Psychological Science 428; Justin Sevier, Omission Suspicion: Juries,
Hearsay, and Attorneys Strategic Choices (2012) 40:1 Fla St UL Rev 1; Daniel
Kahneman, Thinking, Fast and Slow (New York: Farrar, Straus and Giroux, 2013);
Justin Sevier, Testing Tribes Triangle: Juries, Hearsay, and Psychological Distance
103 Geo LJ [forthcoming in 2015], online:
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dence in a certain way. Rather, the point is that there are objective epis-
temic standards for what is to count as knowledge, which evidence law
should be seeking to replicate in determinations of admissibility.
This is not to say that the reliability of information is irrelevant to
admissibility, but that the epistemic standards at play ought also to be an
important factor in fashioning and deploying the rules of admissibility.
While empirical psychological research may point away from the utility of
certain exclusions, I argue that there are still important philosophical
reasons for maintaining those exclusions.12
Another caveat is that the argument presented is mainly aimed
against the trend toward finding more hearsay to be admissible. However,
the philosophical points raised here could also be used to criticize the re-
laxations of certain other exclusions. In the United States, for example,
Federal Rule 903 has abolished the need for a subscribing witness to au-
thenticate documentary evidence unless the jurisdiction otherwise re-
quires it (some U.S. states, for example, still require attestation for wills
to be admissible13). This allows documentary evidence to speak for itself in
much the same way that jurors are likely to encounter such documents
outside the courtroom. Similarly, Federal Rule 1003 allows for reliable
duplicates of documents to be admitted instead of originals unless there is
a genuine question raised about the authenticity of the originals. Feder-
al Rule 1004 through 1007 provide for other ways to present the content
of documents when originals are not available or otherwise not necessary.
We can say that these exceptions and those discussed below with re-
gard to the admissibility of hearsay derogate from the best evidence
rule.14 Since one could see the best evidence rule itself as partially provid-
ing for the special epistemic context of the courtroom, such exceptions and
limitations will tend to blur the epistemic line between the courtroom con-
text and the mundane epistemic contexts we usually find ourselves in
outside the court.
12 See also Sevier, Omission, supra note 11 at 43 (arguing that empirical research sug-
gesting that juries are capable of accurately weighing the reliability of hearsay evidence
does not undermine philosophical arguments in favor of continued exclusion).
13 See Fed R Evid 903 (Advisory Committee Note).
14 See Omychund v Barker (1744), 1 Atk 22, 26 ER 15 [Omychund]. See also Dale A
Nance, The Best Evidence Principle (1988) 73:2 Iowa L Rev 227; Mirjan Damaka, Of
Hearsay and Its Analogues (1992) 76:3 Minn L Rev 425 at 433, 44748.
LESS EVIDENCE, BETTER KNOWLEDGE 179
I. Benthams Critique
Bentham classified evidence law as adjective law, grouping it with
procedure and distinguishing it from substantive law.15 As a part of pro-
cedure, its primary object was to allow decisions to be reached that con-
form to substantive law with a minimum of the inconveniences … of de-
lays, vexations, and expense.16 However, Bentham saw an essential ten-
sion between substantive law and adjective law in that the latter can be
used to reach a conclusion that would contradict what the substantive law
seems to promise.17
Bentham himself notes that the habitual reception of reliable infor-
mation by others in daily discourse induces a general disposition to be-
lieve the testimony of others.18 Of course there are sufficient instances of
deception for there also to be a disposition to doubt, but this is the excep-
tion and depends upon a specific cue that causes doubt.19 In general, the
normal machinations of society depend heavily upon the assumption that
most testimony of others is truthful.20
That said, Bentham does classify hearsay as makeshift evidence, in-
dicating that it is an inferior form of evidence for judicial purposes as a
result of the inability of a party to cross-examine the declarant.21 Given
this inferiority, Bentham advises a basic rule of not admitting hearsay ev-
idence.22 He also, however, articulates a sweeping exception that swamps
the rule.23 He would admit the hearsay whenever examination of the de-
clarant is either physically or prudentially impracticable, where the lat-
ter includes a preponderant inconvenience in the shape of delay, vexa-
tion, and expense.24
In this we can understand his considerations as stemming from a form
of the best evidence rule.25 Benthams main concern leading him to allow
the bulk of hearsay to be admitted into evidence is the worry that infor-
mation not otherwise attainable would be excluded from consideration,
15 Bentham, Treatise, supra note 1 at 1.
16 Ibid at 2.
17 See ibid at 3.
18 Ibid at 16.
19 See ibid.
20 See ibid.
21 Bentham, Rationale, supra note 1, vol 3 at 396.
22 See ibid at 402404.
23 See ibid at 404.
24 Ibid at 408. See also Chadbourn, supra note 3 at 937.
25 See Omychund, supra note 14. See also Fed R Evid 10011003.
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and the claim that this result is worse than the risks of unreliability asso-
ciated with the evidence itself.26 That is, the harm of a misdecision based
on incomplete information is greater than the harm of a misdecision
based on imperfect information, the dangers of which can be cured by re-
trial when made manifest.27
II. Impact of Benthams Critique
Nineteenth-century reformers largely ignored Benthams arguments
on hearsay even while accepting many of his other reforms.28 At the turn
of the twentieth century, however, the tide began to shift.29 In the United
States, this culminated in the American Law Institutes Model Code of
Evidence proposed rule 503(a) in 1942: Evidence of a hearsay declaration
is admissible if the judge finds that the declarant … is unavailable as a
witness. Their rationale for this rule is that it explicitly
treats the jurors as normal human beings, capable of evaluating
relevant material in a court-room as well as in the ordinary affairs
of life [where] they hear, consider and evaluate hearsay.30
As we will see, it is the very ubiquity of knowledge based on hearsay out-
side the courtroom that renders it problematic for knowledge attributions
in the higher stakes context of the courtroom. Nevertheless, these first
salvos were not, at first, received positively by courts and legislatures.31
Reformers then turned to professing a rejection of the Benthamite princi-
ple of universal admissibility where the declarant was unavailable, even
as they whittled away at the hearsay exclusion by using a series of ex-
panding exceptions.32
The focus has for many years been upon those increasingly byzantine
exceptions, leading many jurisdictions to adopt some form of catch-all or
principled exception.33 In the United Kingdom, hearsay is admissible in
26 See Bentham, Rationale, supra note 1, vol 3 at 409.
27 Ibid at 53637, 542, 54950. See also Chadbourn, supra note 3 at 939.
28 See Chadbourn, supra note 3 at 94042.
29 See ibid at 94243.
30 Edmund M Morgan, Foreword in Model Code of Evidence (Philadelphia: American
Law Institute, 1942) 1 at 48. See also Chadbourn, supra note 3 at 944.
31 See Chadbourn, supra note 3 at 945.
32 See ibid at 94546, noting in 1962 that the Uniform Rules of Evidence drafters explicit-
ly reject the Benthamite critique. See also David Alan Sklansky, Hearsays Last Hur-
rah (2009) 2009 Sup Ct Rev 1 at 2.
33 See e.g. the United States Residual Exception found at Fed R Evid 807.
LESS EVIDENCE, BETTER KNOWLEDGE 181
civil cases34 and it is admissible in criminal trials when the declarant is
unavailable or in fear of bodily harm or financial loss for giving testimony,
or when the court deems it in the interests of justice to do so.35 In Canada,
where hearsay exclusions and their exceptions are based on common law
principles and court decisions, the increasing complexity of implementing
common law exceptions has led courts to embrace an increasingly flexi-
ble approach termed the principled approach.36 This has led to a shift in
the basic assumptions about hearsay, leading some to argue that the em-
phasis is now on inclusion unless there are compelling reasons to ex-
clude.37 While legally the presumption is still on exclusion, there is no
question that the principled approach has led to a much broader admissi-
bility of hearsay and represents a large step toward free proof.38 As will
become apparent, there is some irony in the notion that the principled ap-
proach allows courts greater adaptability in their sensitivity to contextual
considerations surrounding the creation and admission of the out-of-court
statement or document.
In Khan, the Supreme Court of Canada introduced what became
known initially as the principled exception, allowing the out-of-court
statement of a child where the guarantees of necessity and reliability are
34 See Civil Evidence Act, 1995 (UK), c 38, s 1.
35 See Criminal Justice Act, 2003 (UK), c 44, ss 114(1), 116. See also Criminal Justice Act,
s 118, listing several other common law exceptions that are maintained; Criminal
Justice (Scotland) Act, 1995, c 20, s 17; R v Twist, [2011] EWCA Crim 1143, 2 Ct App
Rep 17. See also Sklansky, supra note 32 at 2.
36 Shawn Moen, Seeking More Than Truth: A Rationalization of the Principled Exception
to the Hearsay Rule (2011) 48:3 Alta L Rev 753 at 754, 755. See also Hamish Stewart,
Hearsay after Starr (2002) 7 Can Crim L Rev 5 at 12, 18 (noting that the principled
approach can be used to admit hearsay not otherwise falling under a traditional com-
mon law exception, or can be used to exclude hearsay that does fall under a common
law exception). See generally Lee Stuesser, R. v. Starr and Reform of the Hearsay Ex-
ceptions, Case Comment on R v Starr, (2002) 7 Can Crim L Rev 55 (arguing that the
principled approach functions as the main guide for all future court decisions on the
admissibility of hearsay).
37 Moen, supra note 36 at 754. Glen Crisp argues that the principled approach allows not
only for the specific circumstances of each case to determine the result [of hearsay ad-
mission considerations], but also for the assessment and admission of all hearsay evi-
dence (Khelawon, Case Comment on R v Khelawon, (2007) 39:2 Ottawa L Rev 213 at
236 [emphasis in original]). See also Hamish Stewart, Khelawon: The Principled Ap-
proach to Hearsay Revisited, Case Comment on R v Khelawon, (2007) 12 Can Crim L
Rev 95 at 103104 (suggesting that, after Khelawon, hearsay is presumptively admissi-
ble so long as defendants confrontation rights are not thereby infringed).
38 See Khelawon, supra note 7 at para 2. See also David Layton, R. v. Pilarinos: Evaluat-
ing the Co-conspirators or Joint Venture Exception to the Hearsay Rule, Case Com-
ment on R v Pilarinos, (2002) 2 CR (6th) 293 at 29496 (arguing Starrs expansion of
the principled approach creates a threshold for application of traditional hearsay excep-
tions).
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182
met.39 This was understood to include non-infant declarants by the Court
in Smith.40 In that decision, the Court also articulated guidelines for the
criteria of reliability and necessity: following Wigmore, reliability is un-
derstood as a circumstantial guarantee of trustworthiness in the facets
of the context in which the statement was made.41 Necessity is understood
as the statement being needed to prove any fact at issue.42 In quoting
Wigmores understanding of the aspects of what makes an out-of-court
statement necessary to include situations in which [t]he necessity is not
so great; perhaps hardly a necessity, only an expediency or convenience,
can be predicated,43 the Court hearkens back to Benthams preference for
inclusion where there would otherwise be a preponderant inconvenience
in the shape of delay, vexation [and] expense.44
In R. v. B. (K.G.),45 the Court extended the principled approach to sit-
uations in which the declarant is also available in court. More recently, in
Khelawon, the Court elaborated on the reliability requirement noting that
it is met when the circumstances show that there is no concern about
whether the out-of-court statement is true,46 or where the fact of it having
been made out of court is not of concern since there are other means of
testing its veracity than by cross-examination.47 The Court also notably
allowed all relevant factors to be considered in assessing threshold reli-
ability, including, in appropriate cases, the presence of supporting or con-
39 Supra note 7 at 548 (allowing admission of out-of-court statements made by three-year-
old to her mother shortly following sexual assault by doctor).
40 See supra note 7 at 93234 (allowing mother to testify to substance of two telephone
calls from daughter who was subsequently murdered even where the information did
not fall under previous exceptions to the hearsay exclusion rule; a third conversation
was excluded and the defendant was acquitted on retrial).
41 Ibid at 933.
42 See ibid.
43 Ibid at 934, citing John Henry Wigmore, A Treatise on the Anglo-American System of
Evidence in Trials at Common Law, vol 3, 2nd ed (Boston: Little, Brown & Company,
1923), at 155 1421.
44 Bentham, Rationale, supra note 1, vol 3 at 408.
45 [1993] 1 SCR 740, 19 CR (4th) 1. Inconsistent statements were used for their substan-
tive truth (and not just for impeachment) where witnesses were videotaped at the police
station claiming that the accused had admitted to murdering the victim, statements
they later recanted at trial for which they pled guilty of perjury.
46 See supra note 7 at para 49. The Court ultimately rejected the use of out-of-court
statements of nursing home residents as insufficiently reliable (see ibid at para 109).
47 See John McInnes, Devine and Blackman: Back to the Future or Ahead to the Past?,
Case Comment on R v Devine and R v Blackman, (2008) 57 CR (6th) 31 at 32 (referring
to, respectively, the truth route to admissibility and the process route to admissibil-
ity).
LESS EVIDENCE, BETTER KNOWLEDGE 183
tradictory evidence,48 thus overturning restrictions49 on the use of extra-
neous evidence in determining admissibility stemming from Starr.50
What is clear from these developments is that courts and reformers,
once they overcome concerns with the rights of the accused to confront
witnesses, are primarily concerned with the reliability of the information
obtained from the out-of-court statements.51 As will become clear, howev-
er, this criterion is not enough to cover all of the considerations that need
to be addressed when dealing with the justifications for beliefs of fact
finders in the courtroom.52
III. Knowledge Attributions
Among its other tasks, the law of evidence should be concerned with
ensuring that knowledge attributions made by fact finders to witnesses or
to themselves are made on the basis of adequate and reproducible justifi-
cations.53 That is, when fact finders hear a witness give testimony, they
are called upon to make a decision about whether to believe the witness is
telling the truth and whether she knows the information to which she is
testifying, and then to incorporate that information into their own corpus
of beliefs after entertaining beliefs in contradicting information. Hence, an
analysis of evidentiary rules should not be solely concerned with the rele-
vance and reliability of the evidence admitted, but also with the way that
evidence suggests the justifications for a fact finders beliefs.54
48 Khelawon, supra note 7 at paras 4.
49 See ibid at paras 5455.
50 Supra note 7 at para 217. This represented the Courts acceptance of the arguments in
Suhail Akhtar, Hearsay: The Denial of Confirmation (2005) 26 CR (6th) 46, and a re-
jection of those in Hamish Stewart, A Rationale for the Rejection of Extrinsic Evidence
in Assessing the Reliability of Hearsay (2005) 30 CR (6th) 306. See also Stewart,
Khelawon, supra note 37.
51 See e.g. Seigel, supra note 5 at 89697 (seeking to develop a best evidence hearsay
rule that maximize[s] the amount of information received by the fact finder and min-
imizes the only serious hearsay danger that lawyers will manipulate hearsay to cover
for weaknesses in their cases). See also R v Youvarajah, 2013 SCC 41, [2013] 2 SCR 720
(disallowing hearsay evidence of co-conspirator who entered plea bargain where solici-
tor-client privilege prevented meaningful cross-examination on substance of out-of-
court statements).
52 For an alternative argument against reliability as a criterion for assessing hearsay, see
HL Ho, A Theory of Hearsay (1999) 19:3 Ox J Leg Stud 403.
53 See Michael S Pardo, Testimony (2007) 82:1 Tul L Rev 119 at 139.
54 See Moen, supra note 36, although he sees this as a reason to defend the principled ap-
proach, which I will criticize below.
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Some may counter that the object of evidence given at trial and hence
of evidence law is that the beliefs of fact finders have a high probability of
being true.55 On this view, probabilistic belief rather than knowledge is
therefore the object of evidence law; the reliability of information present-
ed is the only concern. While a complete reply to this objection would re-
quire the paper be devoted to the subject,56 there are a number of prob-
lems with this view that can be listed here to motivate the claim that
knowledge attributions ought to be understood as the main focus of evi-
dence law.
First, it is not clear that the idea of probabilistic belief is actually at
odds with a focus on knowledge attributions.57 If knowledge is approxi-
mated with true beliefs that are sufficiently justified,58 then probabilistic
belief claims are merely claims that the proper justification is a high de-
gree of probability. Second, note that probabilities themselves must be be-
liefs in order to be acted upon by the fact finder.59 Under this view, [t]o
justify a finding, the fact-finder needs only to believe, and be justified in
believing, in the relevant proposition of probability.60 Hence, if the object
is a justified belief in probability, we are still in the realm of determining
what justifies knowledge attributions about those propositions of probabil-
ity. Notice as well that the goal of beliefs that have a high probability of
truthfulness is not the same as the goal of admitting only reliable infor-
mation. Anyone concerned with ensuring a high probability of true beliefs
will need to investigate further how information presented factors into be-
lief formation and whether reliability can be translated into high probabil-
ity when producing a belief. [H]owever supportive it may be, statistical
evidence will contribute little to the warrant of a conclusion unless it is al-
so reasonably independently secure.61
55 See e.g. Neil B Cohen, Confidence in Probability: Burdens of Persuasion in a World of
Imperfect Knowledge (1985) 60:3 NYUL Rev 385 at 390, n 33 (surveying literature).
56 Other recent replies can be found in Michael S Pardo, The Nature and Purpose of Evi-
dence Theory (2013) 66:2 Vand L Rev 547 at 596ff, and Louis Kaplow, Burden of
Proof (2012) 121:4 Yale LJ 738 at 859.
57 Susan Haack argues extensively that probabilities in the assessment of evidence are to
be seen as epistemic likelihoods (rather than mathematical probabilities), buttressing
the notion that the warrantability of beliefs (or attributions of knowledge) is the proper
focus of evidence law (The Embedded Epistemologist: Dispatches from the Legal
Front (2012) 25:2 Ratio Juris 206 at 217, 218ff).
58 See Plato, Theaetetus, translated by John McDowell (Oxford: Oxford University Press,
1973) at 9394 (although Socrates defeats several proposed accounts of justification).
59 See Ho Hock Lai, A Philosophy of Evidence Law: Justice in the Search for Truth (Ox-
ford: Oxford University Press, 2008) at 109 [Ho, A Philosophy of Evidence Law].
60 Ibid.
61 Haack, supra note 57 at 230.
LESS EVIDENCE, BETTER KNOWLEDGE 185
The focus on knowledge attributions rather than knowledge simplicit-
er is motivated by the realization that, at trial, truth is always at issue. To
say that we ought to be concerned with warranted attributions of
knowledge is to say that we are trying to make sure that the beliefs
formed by fact finders are sufficiently well-grounded. The view that this
sufficient grounding consists of a certain level of probability of truth is
simply one way of cashing out what counts as sufficient justification for
warranted knowledge attributions.
Michael Pardo points out that truth itself cannot be the focus since
some true beliefs can be accidental, and we want evidence law to ensure
that fact finders are forming their beliefs for good reasons.62 This is an
additional reason to say that the goal of evidence law is warranted
knowledge attributions, rather than truth. By focusing on when an at-
tribution of knowledge is warranted, we are saying that the law is seeking
to ensure that fact finders have good reasons for their beliefs about evi-
dence and about what is useful for coming to decisions. Again, even if a
preponderance-of-evidence standard is at play and fact finders do not need
to attribute to themselves full knowledge of the substance of the verdict in
order to reach it, they still need to attribute knowledge to witnesses and
to themselves regarding pieces of evidence along the way to the verdict.
Ho Hock Lai notes that when fact finders render a verdict, they are
necessarily asserting the truth of the verdict in that the verdict is very
simply their finding of fact.63 He adds that assertions are necessarily
claims of knowledge.64 Among other reasons for this, we cannot assert
that something is the case and at the same time claim that we have no
knowledge that it is true.65 Hence all verdicts are claims (or self-
attributions) of knowledge. Even where there is a legal presumption in fa-
vour of one party and one is finding for that party merely because the op-
posing party did not sufficiently meet its burden, one is thereby asserting
(and therefore generally attributing knowledge to oneself) that the oppos-
ing party did not meet its burden. While Ho eventually modifies his view
to state that fact finders need only to reach a verdict where they would be
justified in believing the truth of the verdict were they to take only admis-
sible evidence into account, even under this view fact finders need to
62 See The Field of Evidence and the Field of Knowledge (2005) 24 Law & Phil 321 at
322.
63 See Ho, A Philosophy of Evidence Law, supra note 59 at 86.
64 See ibid at 8789 (citing numerous epistemologists in support).
65 See ibid at 88, citing George Edward Moore, Commonplace Book 19191953, ed by Cas-
imir Lewy (London: George Allen & Unwin, 1962) at 277.
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make knowledge attributions to witnesses and themselves as they amass
information that would serve to justify their eventual verdict.66
[W]hat the finder of fact is asked to determine is not whether the de-
fendant did it, but whether the proposition that the defendant did it
is established, to the required degree of proof, by the admissible evi-
dence presented; in other wordssubject to the legal constraints sig-
naled by the phrases to the required degree of proof and admissi-
ble evidenceto make an epistemological appraisal.67
Furthermore, the focus on knowledge attributions should not be con-
fused with the claim that fact finders must have robust knowledge (rather
than beliefs that are highly probably true) in order to reach their verdict.
In order to form any beliefs, fact finders will logically be attributing
knowledge to witnesses and to themselves, even if the conflicting mass of
evidence only leads to a probability that one sides claims are valid. At the
very least, the belief in a higher degree of probability that a given witness
is reporting a fact is itself a form of knowledge attribution. To say, I have
a greater than fifty per cent confidence that witness A has reported the
facts truthfully is itself to attribute a kind of knowledge to oneself that
the degree of belief is well-founded.68
In light of this concern, even an ideal juror (or judge) is best served by
certain exclusionary rules. These rules can be justified by appealing to the
need for the law to anchor knowledge attributions made by fact finders (to
themselves or to witnesses) to a context suggested by the standards of
proof appropriate to the case. That is, the standard of proof suggests a
certain level of epistemic justification needed for knowledge attributions.
It should be emphasized, however, that in this debate over the exclu-
sion of relevant evidence, I am focusing on rules such as hearsay exclu-
sions,69 which are not based on external policy considerations, such as the
need to incentivize law enforcement officers to avoid unreasonable
66 See ibid at 93.
67 Haack, supra note 57 at 214 [internal citation omitted] [emphasis in original].
68 See Ho, A Philosophy of Evidence Law, supra note 59 at 12427. See also ibid at 14041
(the author goes on to argue that the failure of civil courts to accept objective probabili-
ties as sufficient grounds for verdicts against defendants (e.g., where one is damaged by
a negligently driven (but otherwise unidentifiable) taxi and one sues the company that
owns more than fifty per cent of the taxis in townone example of the proof paradox).
This shows that non-partial justifiable beliefs must be the object of legal evidence. On
the taxi example, see also Amos Tversky & Daniel Kahneman, Evidential Impact of
Base Rates in Daniel Kahneman, Paul Slovic & Amos Tversky, eds, Judgment Under
Uncertainty: Heuristics and Biases (Cambridge, UK: Cambridge University Press, 1982)
153 at 15658.
69 For Benthams desire to radically curtail hearsay exclusions, see generally Bentham,
Rationale, supra note 1, vol 3 at 558ff; Chadbourn, supra note 3.
LESS EVIDENCE, BETTER KNOWLEDGE 187
searches and seizures, or alleged tortfeasors to act swiftly to prevent fur-
ther accidents,70 or to protect incentives for people to communicate freely
with their doctors, clergy, or lawyers.
While the argument of this paper is primarily occupied with hearsay
as an example of an exclusion about which much thinking and rule mak-
ing has already been done, it is intended to apply more broadly to dis-
suade those who would curtail epistemically-based exclusionary principles
in favour of free proof.
IV. Contextualism
As mentioned above, theorists approach the study of knowledge from
the approximation that knowledge is justified true belief,71 although there
are many counterexamples to this formulation.72 Even within this approx-
imation, questions arise as to what counts as sufficient justification to
constitute knowledge. The challenge that theorists attempt to answer
with a variety of accounts of knowledge is how to support the notion that
a belief is justified where the usual evidence we use to form those beliefs
is consistent with the belief being false. That is, if all the evidence we
have from our senses and other sources is consistent both with what we
believe about the world around us and with the possibility that we are
dreaming or hallucinating, then it would seem as though we cannot claim
to have any knowledge about the external world. This is the problem of
skepticism.73
I will focus on epistemic contextualism, one admittedly controversial
theory that arose as a reply to the skeptical worry.74 While it is controver-
sial, there are a number of factors that point in its favour for these pur-
poses. For one, contextualism captures theoretically the suggestion we
find in law that there can be different standards for knowledge attribu-
tions in different circumstances. The very fact that there are two or three
70 See e.g. Fed R Evid 407.
71 See generally Jonathan Jenkins Ichikawa & Matthias Steup, The Analysis of
Knowledge in Edward N Zalta, ed, Stanford Encyclopedia of Philosophy (2013), online:
72 The most often discussed counterexamples are those found in or based on Edmund L
Gettier, Is Justified True Belief Knowledge? (1963) 23:6 Analysis 121.
73 See generally Peter Klein, Skepticism in Edward N Zalta, ed, Stanford Encyclopedia
of Philosophy (2013), online:
74 See Keith DeRose, Contextualism and Knowledge Attributions (1992) 52:4 Philosophy
& Phenomenological Research 913 at 917; Keith DeRose, Solving the Skeptical Prob-
lem in Ernest Sosa & Jaegwon Kim, eds, Epistemology: An Anthology (Malden, Mass:
Blackwell, 2000) 482 at 483.
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different standards of proof in differing legal contexts suggests, in con-
junction with the argument in the previous section, that our legal practic-
es already embrace the notion that the standards of epistemic justification
can vary according to context.75 Hence, if it made any sense to say that the
law seems to favour a given epistemic theory (which is not a claim I am
making), it would likely favour something like contextualism.
Some competing epistemic views go even further than contextualism
in basing the warrantability of knowledge attributions on the practical
considerations or interests of those subject to those attributions, or what
is properly salient to them.76 While I will not be able to give a complete
picture of those theories here nor a defense of simple contextualism
against the alterations and extensions such theories make, suffice it to
say that theorists holding these competing views would likely reach simi-
lar conclusions about evidentiary exclusion from similar worries. Fur-
thermore, contextualism does so while avoiding the somewhat counterin-
tuitive claim that knowledge itself is directly dependent upon the practi-
cal interests at play.77 Contextualism has the merit of being an approach
to knowledge that meets the laws suggestion of variable epistemic stand-
ards, while maintaining certain more traditional intuitions about
knowledge and when it is reasonable to ascribe it.
The main thrust of contextualism is that the justification standards
for knowledge are contextually bound to the kind of information present-
ed. A contextualist reply to the skeptical hypothesis says that it is only a
worry if we are monolithic about the meaning of knowledge. If, on the
other hand, the meaning of knowledge changes depending on the context
in which it is used or attributed to someone, then we can accurately say
that we know, for example, that Alice shot Beth because we saw it, until
someone raises a skeptical possibility (for example, that we were halluci-
nating). At that point, the contextual standards for the attribution of
75 This is only to say that there is something suggestive about the legal notion that stand-
ards of proof can vary depending upon what is at stake. It is not to suggest that this
facet of law entails a specific epistemological view.
76 See e.g. John Hawthorne, Knowledge and Lotteries (New York: Oxford University Press,
2004); Jason Stanley, Knowledge and Practical Interests (New York: Oxford University
Press, 2005).
77 See Stanley, supra note 76 at 3. See also Michael Blome-Tillmann, Contextualism,
Subject-Sensitive Invariantism, and the Interaction of Knowledge-Ascriptions with
Modal and Temporal Operators (2009) 79:2 Philosophy & Phenomenological Research
315; Jonathan Jenkins Ichikawa, Benjamin Jarvis & Katherine Rubin, Pragmatic En-
croachment and Belief-Desire Psychology (2012) 53:4 Analytic Philosophy 327 at 328,
33940.
LESS EVIDENCE, BETTER KNOWLEDGE 189
knowledge have been raised and it may no longer be true to say that we
know that Alice shot Beth.78
David Lewis explained this argument by suggesting that epistemology
is an investigation that destroys its own subject matter.79 The possibility
of knowledge is forestalled by skeptical hypotheses that arise because of
the investigation and testing of what constitutes knowledge. But if this
notion of knowledge is correct, it is not only epistemology that destroys
knowledge; it is also skeptical scenarios that can be raised in many other
contexts, such as the formalized crucible of the courtroom.
As mentioned above, although knowledge is classically understood to
be justified true belief, epistemologists today generally agree that such be-
liefs are neither strictly necessary nor sufficient for knowledge.80 Never-
theless, justified true beliefs still serve as a good point of departure for
discussions about the components of knowledge. That is, one only knows
some proposition P when one believes P, P is actually true, and ones be-
78 DeRose emphasizes the important point that once the context has changed, all uses of
any form of the word know change as well. Hence, we do not reply to the skeptical
doubtI knew then but I dont know nowbecause now that the skeptical possibility
has been raised, it is no longer accurate to say I knew then (see DeRose, Contextual-
ism and Knowledge Attributions, supra note 74 at 92425). This point gives some am-
munition to critics who note that one can simply make direct reference to the epistemic
context in order to recreate this problem. See e.g. Timothy Williamson, Knowledge,
Context, and the Agents Point of View in Gerhard Preyer & Georg Peter, eds, Contex-
tualism in Philosophy: Knowledge, Meaning, and Truth (New York: Oxford University
Press, 2005) 91 at 101. See also Timothy Williamson, Contextualism, Subject-Sensitive
Invariantism and Knowledge of Knowledge (2005) 55:219 Philosophical Q 213 at 220
21 (showing that contextualism and views that focus on the practical interests of the
subject have difficulty accounting for a speaker who admits to having erred in making a
knowledge claim when confronted with a skeptical doubt). See also Stephen Schiffer,
Contextualist Solutions to Skepticism (1996) 96 Proceedings of Aristotelian Society
317 at 32728; Patrick Rysiew, Epistemic Contextualism in Edward N Zalta, ed,
Stanford Encyclopedia of Philosophy (2007), online:
ply, see Rysiew, supra note 78 and Keith DeRose, Bamboozled by Our Own Words:
Semantic Blindness and Some Arguments Against Contextualism (2006) 73:2 Philoso-
phy & Phenomenological Research 316 at 32021 (arguing that intuitions differ and
some will support contextualism), 32122 (arguing that terms like here are more ob-
viously contextually bound and that we are more likely semantically blind to the con-
textualism of knows).
79 Elusive Knowledge (1996) 74:4 Australasian J Philosophy 549 at 550.
80 See e.g. Pardo, Testimony, supra note 53 at 12526. Lewis rejected the justification
element, preferring one in which knowledge obtains so long as the belief of the subject is
true where consistent with all uneliminated possibilities raised by evidence (supra
note 79 at 550, 551). But we can understand this to be simply a specific kind of justifica-
tion. To support the claim that it functions as a specific kind of justification, consider
Pardos citation of Lewis to support the claim that contextualism endorses an account of
legal proof that aims at justification (see Michael S Pardo, The Gettier Problem and
Legal Proof (2010) 16:1 Legal Theory 37 at 45).
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lief in P is justified (i.e., based on good evidence or other good reasons to
believe it).81 In the courtroom, we expect fact finders to make attributions
of knowledge to witnesses based on the witnesses testimony, and then, on
the basis of those attributions, make attributions to themselves, believing
themselves to have knowledge (or lack it) in light of what they hear from
the witness and other information they get in court, as well as their pre-
existing corpus of beliefs.82 Put somewhat more formally, we generally say
that F is justified in believing that P on the basis of Ws assertion that P,
only if F is justified in believing that W knows whether P.83 This places
the primary emphasis on the standards by which those knowledge attrib-
utions are justified. Exclusionary rules in evidence law can then be justi-
fied partially as an attempt to control the context of those attributions.
Contextualism is the theory that the meaning of knowledge in its at-
tribution to someone, as in the sentence S knows that P, depends on fac-
tors in the context of that attribution which can affect the relevant stand-
ards of justification.84 In other words, the epistemic standards that S must
meet vary according to the context in which the trier of fact is uttering (or
considering the belief that) S knows that P.85 Contextualism is therefore
a theory about the truth conditions of knowledge attributions. When the
context is such that the standards are low, it will be easier for knowledge
attributions to be true. When the context is such that the standards are
high, it will be more difficult. Some of those same knowledge attributions
that were true in the low standards context will be false in the high
standards one.
81 Lewis adduces examples in which justification and belief are not necessary for
knowledge (for example, chicken sexing, where farm workers know the sex of a chick
without any apparent justification, and a timid student who knows the answer without
believing it) (see supra note 79 at 556). Hence, these are not strictly necessary condi-
tions. Gettier showed that justification, belief, and truth are not jointly sufficient for
knowledge (see generally supra note 72; Pardo, The Gettier Problem, supra note 80 at
38).
82 This focus on attributions also reflects what is found in contextualism (see Keith
DeRose, Contextualism: An Explanation and Defense in John Greco & Ernest Sosa,
eds, The Blackwell Guide to Epistemology (Malden, Mass: Blackwell, 1999) 187 at 188).
When applying the epistemological theory to the legal situation, I will call the attribu-
tor the fact finder or trier of fact.
83 I thank Chase Wrenn for suggesting this formalization of the testimonial belief rule.
84 Other forms of epistemic contextualism might focus instead on the context of the sub-
ject of the attribution of knowledge, rather than the attributors context (see generally
Rysiew, supra note 78). I leave those forms aside as the legal role of the fact finder sug-
gests an attributor-focused epistemic analysis. As mentioned above, I am suggesting
(though admittedly not fully arguing) that the particular dynamic of the courtroom of-
fers support for attributor contextualism over other forms of contextualism (see DeRose,
Contextualism: An Explanation and Defense, supra note 82 at 190ff).
85 Ibid at 188. See also DeRose, Solving the Skeptical Problem, supra note 74 at 483.
LESS EVIDENCE, BETTER KNOWLEDGE 191
Lewis provides a useful set of rules for coming to knowledge under-
stood contextually.86 While these are admittedly rules of thumb, they do
provide support for seeing knowledge attributions as rule-governed, and
hence also support the value of having rules to govern the admission of
evidence in the courtroom. This also helps to counter Benthams claim
that ordinary knowledge is not a rule-governed enterprise.
Lewis doesnt claim that we consciously use these rules in deciding or
making our knowledge attributions. Since the rules govern the truth con-
ditions of knowledge attributions, they govern the warrantability of mak-
ing those attributions. So we are not following those rules consciously in
deciding what we believe we know. Rather, the rules govern the correct-
ness of those beliefs.
The courtroom is precisely the kind of place where such rules would
need a more formal and perhaps even conscious application. This will be
important to keep in mind when we turn to the application of contextual-
ism to the hearsay exclusion; the worry is not (just) that fact finders sub-
jective beliefs about knowledge are swayed by listening to hearsay, but
that the objective standards of epistemic justification are being manipu-
lated.
This bears repetition: if contextualism is right, then contextual details
alter the objective standards for what can count as knowledge. The worry
is not about what fact finders do or do not believe, but about the flexibility
of objective criteria for assessing their knowledge attributions.
Lewis is answering the question of what possibilities may and may not
properly be ignored in making knowledge attributions. That is, when we
are trying to decide whether or not to attribute knowledge to a witness (or
to ourselves), there are many situations and possible circumstances that
would preclude the truth of the proposition believed (or entertained). For
example, the possibility that a witness was hallucinating would, if true,
undermine the truth of the witnesss claim that he knows Alice shot Beth
because he saw it happen. The question is which of these possible circum-
stances can properly be ignored and which ought to be taken into account
for any attribution of knowledge to be true.87
86 See supra note 79 at 55460. While there are several differences between the forms of
epistemic contextualism endorsed by Lewis and DeRose, they are not of concern for our
purposes here.
87 As will be apparent when we arrive at Lewiss last rule, these rules are about which log-
ical possibilities must be ruled in, or can be ruled out, when deciding the truth of a
knowledge attribution. Except for the last one, they do not address the psychological
state of the attributor.
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Put somewhat more formally, Lewiss account is that As utterance of
(or belief in) S knows that P is true as long as Ss evidence rules out all
possibilities of not-P except those possibilities that are properly ignored by
A.88 Note that the question of what is properly ignored is dependent upon
the context that A (the attributor) is in, while it is the evidence held by S
(the subject) that is doing the ruling out. Also, Lewiss notion of evidence
here should not be confused with the legal notion, and instead is meant to
describe the totality of the subjects experiential state. Put another way, a
fact finders attribution of knowledge is appropriate so long as the infor-
mation to which the witness has access rules out all defeating possibili-
ties, except any possibilities the fact finder may properly ignore.
To apply this in an admittedly oversimplified example, we can imagine
a fact finder hearing a witness testifying that he heard a gunshot and
immediately burst into the room to see Alice holding a smoking gun over
the prone body of Beth. The fact finder can properly attribute the
knowledge that Alice shot Beth to the witness. The fact finder thereby
comes to attribute that knowledge to herself upon hearing the testimony,
assuming she believes the witness and this belief is consistent with the
rest of the acceptable evidence that she hears. The attribution of
knowledge to the fact finder herself takes place if she is entitled to ignore
defeating possibilities that are consistent with the witnesss experiential
state: for example, that the witness was hallucinating, or confused some-
one else with Alice, or that there was a third party who thrust the gun in-
to Alices hand in the split second before the witnesss entry.89
Here are Lewiss rules for which possibilities are properly included by
the attributor and which are properly ignored: the Rule of Actuality
holds that anything actually true may not be ignored by the attributor.90
The Rule of Belief holds that anything the subject believes (or that he
ought to believe based on the evidence he has) may not be ignored by the
attributor.91 The Rule of Resemblance holds that the attributor may not
ignore any possibility that is saliently similar to that of the subjects belief
88 See supra note 79 at 561.
89 While this oversimplified example is about an ultimate factual issue in a murder trial,
the same considerations apply to non-ultimate and other ancillary facts that could con-
tribute to an ultimate verdict.
90 Supra note 79 at 554. Although we are considering situations in which what is actual is
in doubt, this rule is still important in that any information available to an attributor
that defeats the subjects knowledge must be used to defeat the attribution. Where they
differ, it is the subjects actuality that must be considered by the attributor. See ibid at
555.
91 Ibid at 55556.
LESS EVIDENCE, BETTER KNOWLEDGE 193
that is the candidate for knowledge.92 The Rule of Reliability is a per-
missive rule, detailing what may be ignored, rather than what must be
included.93 It holds that we may generally ignore any possibility in which
the subjects usual ways of coming to information fail.94 Of course, this is
very often a subject of doubt in courtroom situations, and this permissive
rule is defeated by conflicting cases of rules telling us what may not be ig-
nored. Similarly defeasible, two Rules of Method allow the attributor to
assume that given samples are representative and that the best explana-
tion of the subjects evidence is the right one.95 Another permissive yet de-
feasible rule is the Rule of Conservatism, which allows an attributor to
ignore any possibilities usually ignored by everyone else.96
The final rule is perhaps the most important one for our purposes: it is
the Rule of Attention, which holds that any possibility may not be ig-
nored once it has been raised.97 Once a possibility in which the proposition
is false has been brought to the attention of the attributor, then, so long
as that context persists, an attribution of knowledge that the subject
knows the proposition will be false. This is where the traditional skeptical
hypotheses interfere with knowledge. When someone raises the possibility
that our senses are deceiving us, then we are in a context where many of
our knowledge attributions will be false.
It should also be noted that to the extent that a possibility can be elim-
inated, either by preventing the possibility from being raised in the first
place or by artificially requiring its exclusion from consideration, the con-
textual standards can be kept low and knowledge can be more easy to
come by. While contextual standards are usually kept low by keeping in-
formation about possibilities out of consideration, an interesting and ne-
glected corollary of the contextualist view of knowledge is that the contex-
tual standards can also be kept high by excluding certain considerations.
If an attributor is in a context of suspicion and doubt, that context can be
eased somewhat by relying on the permissive rules to allow the considera-
tion of information, doubts about which may be ignored, where those con-
siderations are not defeated by the other rules. For example, the rule of
reliability allows us to rely upon the witnesss usual ways of coming to
92 Ibid at 55657 (noting that this rule explains why we do not know we will not win the
lottery when we play).
93 Ibid at 558.
94 See ibid.
95 Ibid.
96 Ibid at 559.
97 Ibid.
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knowledge and to exclude considerations that those usual ways are misfir-
ing, unless there is information to the contrary.
This leads to a more relaxed context for knowledge attribution. In the
example of listening to the witness recount his story about finding Alice
with a smoking gun, keeping out information that the witness is very well
acquainted with Alice will keep the stakes for knowledge attribution
higher by keeping alive the possibility that he confused someone else for
Alice. That is, by keeping that information away from the fact finder, it is
more difficult to warrant any ascription of knowledge by the fact finder to
the witness.
While the literature has not paid much attention to the exact process
by which the contextual standards for knowledge attributions are lowered
(after all, the epistemologists are primarily concerned with replying to
skeptical worries that knowledge is never possible), Lewis suggests that it
is as simple as moving the conversation on to another context in which
the doubt-inducing possibility is properly ignored.98 An idea of how this
might work can be illustrated by considering another conversational game
in which the semantic standards are contextually bound.99 I finish drink-
ing my glass of water, place the glass on the table and announce: The
glass is now empty. You point out that several drops remain and I must
now agree that the glass isnt really empty. But then you say: If it were
only those drops in a swimming pool, youd probably have to say that the
pool was empty. To that, Id probably agree.100 You first raised a kind of
skeptical consideration for the use of the term empty, and then shifted
the context to once again make the term easy to use. Now imagine the
same scenario, but you never raise the consideration about the swimming
pool. In that case, I would be stuck with the higher standards context of
admitting that the glass was not empty until something else shifted the
context back to a more relaxed one.101
98 See ibid at 560. Notice here it is the propriety of ignoring the doubt-inducing possibility,
not whether the doubt is psychologically present in the attributor.
99 The idea for this example was suggested to me in conversation with John Hawthorne
and Neil Williams.
100 While some more pedantic readers (perhaps myself included) would still insist that the
pool was not empty after having our attention drawn to the same number of drops that
were present in the non-empty glass, it seems difficult to imagine that those approach-
ing the pool without having just experienced the non-empty glass would doubt that the
pool was empty. We would be likely, for example, to warn our friends, Dont jump in
the pool; its empty. Whatever it is that returns us to the context in which it is correct
to say the pool is empty is re-establishing the lower standards context for use of the
term empty.
101 Sometimes what is at stake in the context is a determining factor of the standards in
play. Hence, if one is considering adding some chemical to the glass (or pool) that will
LESS EVIDENCE, BETTER KNOWLEDGE 195
Attributions of knowledge are like this but are more complex. In the
analogy of the drops of water in the glass and swimming pool, emptiness
is analogous to knowledge. The point of the analogy is to explain how con-
text can set the standards for the proper use of the term. Raising the con-
sideration of the swimming pool re-establishes a lower standards context
for the use of the word empty.
Skeptical considerations can undermine ones ability to make war-
ranted knowledge attributions. But the activation of what we might call
our quotidian epistemic apparatus can shift the context back to one in
which the standards for knowledge attribution are lower again. A prime
example of a quotidian epistemic apparatus is hearsay. Since we come to
so much of our useful knowledge outside the courtroom through hearsay
in situations of natural testimony,102 receiving information via hearsay
is likely to re-establish a lower standards context for knowledge attribu-
tions.
You and I are having a conversation about a hockey game I attended
and I say, I know Smith scored because I saw him hit the puck into the
net. An epistemologist has just entered the room and annoyingly asks,
How do you know you werent hallucinating? Now I ought to agree, I
(believe I) saw it but I dont really know it because I cannot ignore the
possibility that I was hallucinating [any longer]. The conversation turns
back to hockey. You tell me that you heard a news report on the radio that
our favourite team has been bought and will be moved to another city. As
long as the epistemologist stays quiet, it is certainly permissible for me to
explode when coming into contact with water, the standards for empty will be much
higher and hence not as easily lowered by the consideration of the pool. Thus, high
stakes can insulate a higher standards context from being lowered. I thank an anony-
mous reviewer for pointing out the necessity of this clarification. Three words of warn-
ing are in order here, however. First, the discussion of stakes should not be misinter-
preted to indicate that the appropriate contextual standards are dependent upon sub-
jective valuations (although certain other epistemic theories might incorporate those
valuations). If one is considering introducing the chemical that will explode, then it will
be harder to warrant calling the glass empty regardless of whether one desires to create
the explosion, desires to avoid it, or is indifferent to it. Second, the contextual stakes
cannot entirely insulate the higher standards context from being lowered. Consider a
large enough vessel, and a scant few drops will not interfere with considering it empty
regardless of the chemical, since the chances of the chemical coming into contact with
those few drops will become vanishingly small. This consideration can be used to resist
any claim that the stakes in any trial are inherently high and therefore insulate the
contextual standards from being lowered. Finally, the term stakes is used in the epis-
temic literature to refer to the contextual standards themselves. However, in applying
these ideas to the legal arena, use of the term can create confusion for what is at stake
in the legal proceeding. I will therefore avoid it as much as possible.
102 CAJ Coady, Testimony: A Philosophical Study (Oxford: Clarendon Press, 1992) at 38.
See also Pardo, Testimony, supra note 53 at 13234.
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say, I know that our team will be moved (assuming I have no pre-
existing reason to doubt you or the news report). Once raised, I cannot
properly ignore the possibility that I was hallucinating at the hockey
game. But unless the epistemologist starts drawing my attention to that
possibility in other contexts as well, I may once again ignore that possibil-
ity when considering my belief that the team will be moved.
While the skepticism raised by the epistemologist might extend for a
time to similar evidentiary situations, there is no immediate reason to ex-
tend it to distinct ways of coming to knowledge unless the skeptical possi-
bility is raised for those ways as well. I might have reason to doubt other
things I witnessed at the hockey game, but less reason to doubt infor-
mation I received aurally much later. Hence, after the epistemologist
raises the hallucination possibility about the hockey game, I might not be
in a position to claim knowledge for other events I experienced with my
eyes around the same time (for example, that I saw two acquaintances
fighting in the stands during the game). But the shift in focus to other
times, places, and senses by hearing from you about the news report that
the team is moving re-establishes a lower standards context, making
knowledge attributions more easily true.
It is easy to see why we might want to exclude unfounded skeptical
considerations in the courtroom. We do not want merely philosophical
possibilities to undermine the basis for knowledge attributions that fact
finders make. We want the considerations that might interfere with
knowledge attributions to be reasonable doubts (even at the highest
standard of proof), and merely philosophical possibilities such as the pos-
sibility that I was hallucinating or dreaming about a hockey game are
manifestly unreasonable doubts. But at the same time we need to be more
attentive to the other side of the contextualist spectrum. The need for a
certain heightened epistemic standard in the courtroom provides a reason
to avoid the introduction of information that employs our quotidian epis-
temic apparatus, which tends to depress that heightened epistemic stand-
ard.
V. Courtroom
The courtroom is a somewhat artificial epistemic environment: people
have an unusually high motivation to lie or dissemble; lawyers are trying
to manipulate the information that is brought out so that the situation
appears favourable to their side; fact finders are likely to be aware of
these concerns and are well advised to be more on guard epistemically
than they usually would be. In criminal cases, the standard of proof itself
reinforces the need for greater vigilance.
Nevertheless, into this situation people necessarily bring their normal
epistemic apparatuses. That is, their means of coming to knowledge are
LESS EVIDENCE, BETTER KNOWLEDGE 197
substantially the same as they are outside the courtroom: observation,
hearing witness reports, deciding what to believe on the basis of argumen-
tation. The law then needs to manipulate the artificial environment to
bring peoples epistemic apparatuses into line with the standards of proof
appropriate for the case. This is to ensure that the epistemic methods are
appropriate for the heightened standards context of the courtroom. The
rules of evidence are tools for doing just that.
There is no precise science of epistemic contexts. Nor is there a bright
line distinction between a high standards context and a low standards
context. Hence, a legal standard of proof is not suggesting some specific
epistemic context that must be maintained throughout the proceedings.
Indeed, the fact that the standards of proof are not considered to have
sharply defined boundaries103 may additionally reflect the fact that the ep-
istemic contexts themselves do not have well-defined boundaries. Instead,
the standard of proof for the case suggests a relatively narrow range of
contexts that exclusionary rules can help to police.
Fact finders are in a high standards context in the courtroom because
it is harder to come by knowledge than it usually is in most non-
philosophical conversations. That is, fact finders are not entitled to ignore
as many knowledge-defeating possibilities as they would be outside the
courtroom. Some of this is because inconsistent scenarios are constantly
being raised on cross-examination. Additionally, the courtroom is a higher
standards context even absent the raising of specific knowledge-defeating
possibilities because of the heightened doubt inherent in the context.
Given the ability of skeptical possibilities to introduce contexts where
almost all knowledge is impossible, even the heightened standard of proof
of a criminal trial suggests a range of contexts where not just any doubt
will suffice to defeat knowledge.104 In Lewiss terminology, the rule of at-
tention may defeat knowledge attributions as long as the defeating possi-
bility is raised. But the law controls fact finders attention by excluding
some evidence that would raise the skeptical hypothesis to their atten-
tion, and barring that, asking fact finders to exclude certain considera-
tions from their attention (which would be considered impermissible un-
der Lewiss theory, but can be tolerated in the artificial epistemic envi-
ronment of the courtroom). Judges may prevent questioning a witness in
a manner meant to suggest to the jury that he was hallucinating where
103 See e.g. United States v Shaffner, 524 F (2d) 1021 at 1023 (7th Cir 1975), cert denied
424 US 920, 96 S Ct 1126. See also R v Layton, 2009 SCC 36, [2009] 2 SCR 540 (holding
that a trial judge must leave open avenue for jury clarification of meaning of reasona-
ble doubt notwithstanding lack of a bright line definition).
104 See e.g. Torres v State, 116 SW 3d 208 at 212 (Tex App Ct 2003) (upholding a jury in-
struction that distinguished between all reasonable doubt and all possible doubt).
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there is no other evidence to suggest the witness was prone to hallucina-
tions.105
Many exclusionary rules not based on external policy considerations
prevent a relaxation of the context away from the range suggested by the
standard of proof. If we focus on those exclusionary rules based on epis-
temic rather than policy considerations (hearsay, character evidence, the
control of expert opinion, et cetera, rather than rules designed to deter po-
lice misconduct, to maintain the free flow of important communications
with lawyers and doctors, or to incentivize remedial measures by accused
tortfeasors), the exclusion of such information avoids placing the fact
finder in a context in which she has good reason to consider that infor-
mation in making knowledge attributions. While the epistemologists are
usually concerned to show how the exclusion of information can keep low-
er standards contexts by avoiding the introduction of skeptical worries,
some of the information excluded from the courtroom has the opposite
(desirable) effect of maintaining a higher standards context.
We can see the best evidence rule106 as a method for maintaining such
higher standards contexts.107 Whereas in our daily lives, we do not require
the best available evidence to have sufficient justifications for our beliefs
to make knowledge attributions, in the heightened standards context of
the courtroom, we need such rules to maintain that context, requiring
higher standards of justifications for those beliefs. The best evidence rule
is therefore both a context indicator and context protector for those
heightened standards. Hence, relaxations of the best evidence rule (such
as those mentioned in the introduction) allowing for the admission of cop-
ies of relevant documents and exceptions to the hearsay exclusion weaken
the protections of that heightened standards context.
Another example of this can be seen with expert testimony. Given our
reliance on experts as the basis of much of our knowledge of the world
outside court, hearing expert opinion will tend to entitle a fact finder to
ignore more contrary possibilities under the permissive rules of reliability,
method, and conservatism. The triggering of these permissive rules is in-
dicative of a more relaxed epistemic context.
105 For a doubt to be considered reasonable for the purpose of acquittal, it should be based
on reason which arises from the evidence or lack of evidence (Johnson v Louisiana, 406
US 356, 92 S Ct 1620 at 1624 (1972) [internal quotation omitted]). See also R v Lifchus
[1997] 3 SCR 320 at para 30, 150 DLR (4th) 733.
106 See Omychund, supra note 14.
107 See generally Nance, supra note 14. See also Damaka, supra note 14 at 433, 44748
(seeing hearsay exclusions as an example of the best evidence rule).
LESS EVIDENCE, BETTER KNOWLEDGE 199
I am not suggesting that all expert opinion or hearsay be excluded.
Certainly there are things that can be done to maintain a more stringent
context even with the introduction of expert evidence, including the abil-
ity of opposing counsel to raise doubts about its content. Rather, I am em-
phasizing an epistemic benefit to these exclusionary rules that advocates
of free(r) proof overlook. Again, what is relevant here is not whether the
fact finder actually ignores or entertains contrary possibilities that un-
dermine the warrant for knowledge attributions, but that evidentiary
rules be designed so as to control when the fact finder has good reason to
ignore or attend to them.
Hearsay is the most useful example of how this works. As a primary
target of free proof reforms, I will focus on hearsay as a paradigmatic ap-
plication of the contextualist argument. In the Federal Rules, hearsay is
defined as a statement, other than one made by the declarant while testi-
fying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.108 (Two exceptions that do not count as hearsay are cer-
tain prior statements by the witness himself, and certain statements by
the opposing party.109) In Canada, the language differs slightly in the var-
ious cases that treat the issue, but one authoritative statement defines
hearsay as
[w]ritten or oral statements, or communicative conduct made by
persons otherwise than in testimony at the proceeding in which it is
offered … if such statements or conduct are tendered either as proof
of their truth or as proof of assertions implicit therein.110
In many less skeptical contexts, second-hand statements are both a re-
liable and valuable means of coming to knowledge. In the example where
you tell me that our favourite hockey team is leaving our city, I dont usu-
ally need to hear it directly from the new owner, or even the news report
itself, to attribute the knowledge that the team is moving to you or to my-
self. But in the courtroom, where such second-hand reports should not
suffice for an attribution of knowledge, we want to maintain a higher
standards context. Were second-hand statements to be allowed in, a per-
missive rule like the rule of reliability would allow the fact that it is usu-
ally a reliable way of coming to knowledge to relax the context by imply-
ing that many doubts about its reliability are properly ignored.
108 See Fed R Evid 801(c).
109 See Fed R Evid 801(d).
110 Commission de la sant et de la scurit du travail (Can) v Canada, 204 FTR 70 at para
39, 2000 CanLII 16617, citing John Sopinka, Sidney N Lederman & Alan W Bryant,
The Law of Evidence in Canada (Toronto: Butterworths, 1992) at 156.
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Again, I am not arguing that we exclude all hearsay, just that we
should be aware of this epistemic issue when we confront calls for free
proof or an elimination of complex exceptions to exclusion in favour of ju-
dicial discretion focused primarily on the reliability of the information
contained. Also, I am not claiming that all hearsay would create this kind
of problem, as hearsay testimony comes in many shapes and sizes. But
the rule-based exceptions can be interpreted or adapted to navigate hear-
say that does not activate what I have called the fact finders quotidian
epistemic apparatus.111
Admittedly, the judge generally makes a preliminary judgment about
the reliability of the information in determining whether to admit the
hearsay evidence. Hence, one might think that it is sufficient for epistem-
ic purposes for the judge to make a determination of reliability, which is
what the approaches currently in vogue tend to call for.112 When the judge
determines that the hearsay information is sufficiently reliable and allows
it at trial, then the judge has determined that there is unlikely to be any
significant damage to the fact finders ability to try the case using the ap-
propriate standard of proof.
The problem with this rationale is that even if that specific piece of ev-
idence is reliable, its admission helps to decrease the standards for
knowledge attributionnot just about that one piece of evidence, but in
the wider context of the trial as a whole. Recall that in the hockey exam-
ple, hearing the report from you about the news item that the team is
leaving helps to move us to a lower standards context in which it is easier
to make warranted attributions of knowledge, removing the higher stand-
ards that the epistemologist imposed with the skeptical worry. That is,
while the judge makes admissibility determinations based on the reliabil-
ity and probative versus prejudicial value of the hearsay evidence, she is
not directed to make that determination based on any considerations of
111 This point bears some emphasis. One point in favour of a detailed list of exceptions to a
general rule against admitting hearsay is that the exceptions can be tailored to the
types of hearsay less likely to call upon the fact finders quotidian epistemic apparatus.
Without going into a detailed analysis of each of the various forms that hearsay may
take, we can note that some kinds of expert opiniondetailed business records, compli-
cated scientific data, and experimental resultsare less likely to be presented in ways
that activate the fact finders quotidian epistemic apparatus since their associated
standards of justification are outside most fact finders daily experience.
112 See e.g. R v Horncastle, [2009] UKSC 14, [2010] 2 AC 373 at para 15 (this case admits
hearsay where the declarant is deceased or unavailable, having fled out of fear, with ju-
dicial determination that doing so is not unfair to either party, and where the judge
makes determination that the content is reliable). Thanks to an anonymous reviewer
for mentioning this case.
LESS EVIDENCE, BETTER KNOWLEDGE 201
what the hearsay evidence does to the epistemic context of the trial as a
whole.
The point is not that the information contained in the hearsay itself is
suspect, but that by admitting even reliable hearsay, doubts about this
and other evidence can more properly be ignored because the fact finder
uses a normal, everyday method of knowledge acquisition in assessing the
hearsay. The fact finders use of that method then makes the epistemic
standards for other evidence lower.
It lowers the epistemic standards, not the standards of legal sufficien-
cy or the burden of proof. But the process by which the fact finder reaches
a result depends on the epistemic standards as well as the legal ones. Just
as it is easier to say correctly that a vessel containing only a few drops is
empty when attention is directed at swimming pools, when the fact finder
is invited to entertain information obtained through his quotidian epis-
temic apparatus, other knowledge attributions are more easily warranted.
This objection might be developed and pushed a bit further. It might
seem that the impact hearsay has on the epistemic context depends upon
how reliable the hearsay is. If the hearsay is independently reliable, in
that it is more likely to be conveying true information, then it might seem
that attributions of knowledge made on the basis of that hearsay will be
more reliable. Hence, so this objection goes, reliable hearsay does not im-
permissibly lower the contextual standards; it is only the mistaken intro-
duction of unreliable hearsay that does so.
There is a straightforward sense in which it is obviously true that
knowledge attributions made directly on the basis of reliable hearsay (at-
tributing knowledge of the content of the hearsay) is better justified when
the hearsay is reliable than when it is not reliable. However, this objec-
tion misconstrues the relation between the reliability of the hearsay and
hearsays impact on the wider epistemic context. The ability of hearsay to
raise or lower the contextual standards for knowledge attributions does
not stem directly from the quality of the hearsay. Reliable hearsay does
not necessarily raise the contextual standards and unreliable hearsay
does not necessarily lower them. The reliability and content of the hear-
say may or may not have a direct impact on the epistemic context.
Recall that the contextual standards depend upon which possibilities
inconsistent with the content of the hearsay are properly ignored. Those
may not have anything directly to do with the reliability of the hearsay.
Reliable hearsay could give rise to more reasons to believe witnesses
claims by allowing more doubts to be properly ignored, thereby lowering
the contextual standards. Or the content might give rise to more reasons
to doubt those other claims. The same can be said about unreliable hear-
say: it may give rise to more reasons to believe or more reasons to doubt.
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This probably seems like I have admitted to the force of the objection.
If the content of both reliable and unreliable hearsay can have either a
raising or a lowering effect on the contextual standards, then there seems
to be nothing to complain about.
The point I am making is that independently of the reliability of the
hearsay, there is a way in which its introduction tends to lower the con-
textual standards for other knowledge attributions by drawing upon the
quotidian epistemic apparatus of the fact finder. So long as I have no pre-
existing reason to doubt you or the news report about the hockey team
moving, even if the report is false, after hearing it my knowledge attribu-
tions are more easily warranted.
The distinction to draw here is between the content of the hearsay
(and its reliability) and the epistemic package it comes in. In listening to
hearsay, the fact finder employs a way of coming to knowledge that works
extremely well and often outside the courtroom.113 This pushes the fact
finder into a lower standards context, making other attributions of
knowledge more easily justified than would have been the case without
the effect of hearsay on the epistemic context.
Let us return to the analogy of the empty water glass and swimming
pool and examine it more closely. When you first point out the drops of
water left in the glass, you have considerably raised the standards for the
use of empty, making it harder for claims of emptiness to be true. When
you then point out that the same drops in the swimming pool dont ham-
per our ability to call it empty, you have then lowered those standards
considerably. You might not have lowered them back to the point where it
was true when I first claimed the glass was empty. But mentioning the
swimming pool has moved the standards back in that direction.
If we were to consider some intermediate container such as a large
bucket, it is likely that the first mention of the drops in the glass would
have also prevented the truth of an assertion of emptiness for the same
drops in a bucket. After calling our attention to the emptiness of the
swimming pool containing those drops, however, we are likely in a more
warranted position to assert that a bucket with only those drops is empty.
This is not something that can be determined with any degree of preci-
sion. Rather, the point is that mentioning the swimming pool has moved
the context to one of more relaxed standards in which it is easier to be jus-
113 Consider that what is called hearsay in the courtroom is precisely the kind of infor-
mation that justifies most of our beliefs in the wider world outside our immediate sen-
sory access. Our knowledge of scientific information, most historical events, and the ex-
istence of and goings on in distant parts of the world all come via second- or third-hand
reports that would be classified as hearsay in the courtroom.
LESS EVIDENCE, BETTER KNOWLEDGE 203
tified in claiming that the bucket is empty than would have been the case
after calling our attention to the remaining drops in the glass.
Turning back to knowledge, the presentation of reliable hearsay in-
formation admittedly might bring in some very important information
that is germane to a correct decision by the fact finder. However, the in-
troduction of this information, coming as it does through the fact finders
quotidian epistemic apparatus, pushes the fact finder into a context with
lower epistemic standards. It is like mentioning the swimming pool when
we want to maintain the standard of the drops in the water glass. This is
not to say that it is never justified to introduce hearsay, only that we need
to be sensitive to the ways in which doing so thereby makes other
knowledge attributions more easily justified.
I realize that I have not detailed a sharp distinction between what I
am calling the quotidian epistemic apparatus and the epistemic mecha-
nisms properly at work in the courtroom. It is clear that there is no fun-
damental methodological distinction between the ways of coming to
knowledge inside the courtroom and the ways we employ every day out-
side the courtroom. Rather, what does appear to be special about the epis-
temic method used in the courtroom is that it is performed more self-
consciously and on the basis of information the content and presentation
of which tend to be outside usual daily experience. The advantage of ex-
cluding hearsay and of other epistemic exclusionary rules is that they
help to maintain the rarefied epistemic context we need for the courtroom.
The claim is therefore that evidence which activates an epistemic meth-
odology more characteristic of the fact finders daily experience depresses
the epistemic standards at play where we have good reason to maintain a
higher standards context.
In fashioning and applying evidence law, we need to be sensitive to
the impact of evidence on the standards of knowledge attributions made
in each stage of the trial, including (especially) the attributions made
when reaching a verdict in the final stages of the decision-making process.
Sometimes the propositions contained within some hearsay evidence are
true and are useful to reaching a correct verdict. But most often, the in-
formation to be presented via hearsay, even if fully credible, is not itself
sufficient to warrant a given verdict. The point is not about the relation of
the hearsay evidence to verdict itself. Rather, the fact that those proposi-
tions come in the form of hearsay threatens the higher contextual stand-
ards of the trial generally.
Hearsay, even about non-ultimate facts, can change the salience of de-
feating considerations, making them appropriately dismissed more easily.
In other words, getting true information that is justifiably believed
through hearsay may make it easier to justify belief in other propositions
considered at trial. When belief in those other propositions is more easily
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justified, the standards of the trial as a whole are depressed, making it too
easy to justify beliefs in propositions of ultimate importance to the verdict,
even if those other propositions are not themselves presented in the form
of hearsay.
VI. Objections, Replies, and Applications
A Benthamite might respond to these considerations by noting that we
could just bring any doubts to the fact finders attention to maintain a
high standards context. That is, we could simply raise the standards
again after the introduction of hearsay by reemphasizing the many rea-
sons to be skeptical about hearsay information.114 A slightly less Ben-
thamite version of this objection would recall the usual justification for
the exclusion of hearsay: the inability to cross-examine the declarant (or,
more generally, the inability of the fact finder to assess the credibility of
the declarant).115 The various exceptions to the exclusionary rule and the
principled approach are designed to assuage fears about the value of prof-
fered hearsay by pointing to indicia of reliability (where present), thereby
overcoming concerns about confrontation and the credibility of the declar-
ant.116 As long as those fears are dealt with, any surviving hearsay is
properly admitted when necessary and reliable under the principled ap-
proach.117 Hence, the high standards context can be maintained by in-
structions to the fact finder or by the process of vetting the hearsay.
There are a number of problems with this reply. First (and this point
bears repetition), the damage that is being done by the introduction of
hearsay is not necessarily done by the content of the hearsay itself but the
fact that the package in which it comes draws the fact finder into a lower
standards context. Doubts about that particular information may not be
sufficient because the fact finder is still invited to assess the information
using her quotidian epistemic apparatus.
Recalling the example where you report the hockey team is moving, if
I were to learn at the same time that the news reporter you heard had a
114 Two psychological studies reported by Sevier indicate that fact finders are already
adept at discounting the reliability of hearsay evidence (see Sevier, Omission, supra
note 11 at 2340). As Sevier notes, this only underscores the importance of philosophi-
cal arguments against eliminating hearsay exclusions (see ibid at 43).
115 See Khelawon, supra note 7 at paras 2, 48.
116 Contra Sevier, Omission, supra note 11 at 43 (noting that the empirically demonstra-
ble psychological ability of fact finders to assess for themselves the reliability of hearsay
evidence is not an argument for admissibility as against concerns about confrontation).
117 See Khelawon, supra note 7 at para 42, citing R v Mapara, 2005 SCC 23 at para 15, 1
SCR 358; Starr, supra note 7 at para 2.
LESS EVIDENCE, BETTER KNOWLEDGE 205
history of making up sensational stories about sports teams, I may come
to doubt the information about the teams moving. But I am not then in a
context requiring more reservations about my knowledge attributions on
the basis of subsequent hearsay (for example, when you tell me what you
heard in the weather report). The only way to raise the standards again
successfully for the trial as a whole would be to raise a skeptical possibil-
ity about the fact finders epistemic abilities or to otherwise shift them
back into a context of greater doubt generally. So the current process used
to determine the admissibility of hearsay will not protect a higher stand-
ards context since it does nothing to keep the fact finders in a context of
greater doubt or otherwise introduce any skepticism about their epistemic
process.
Second, this is where the laws need for consistency comes in. If we are
trying to maintain a context that is anchored to the standard of proof, it
would not be appropriate to let that context fluctuate rather rapidly (per-
haps even statement to statement during the testimony of the same wit-
ness) by allowing more fanciful skeptical doubts to be raised about hear-
say, but not allowing them to be raised about the witnesses own experi-
ences.118
In the courtroom, there are two knowledge attributions that matter to
us, both made by the fact finder. One is when the fact finder is attributing
knowledge to a witness. The other is when the fact finder is attributing
knowledge to herself. When the fact finder is attributing knowledge to a
witness, she is determining that the witnesss experiences comport with
what he is reporting and that those experiences justify the witnesss belief
in what he is reporting. To do so accurately, the fact finder must include
any possibilities she herself must consider under the epistemic rules
above.
When the fact finder is attributing knowledge to herself on the basis of
the witnesss reports (or documentary evidence), she must also include
any considerations raised by the parties and the directions of the judge (if
distinct from the fact finder). This includes making determinations about
whether the witness was dissembling or had some impairment of his
senses.
I do not mean to suggest that knowledge attributions to the witness
and to the fact finders themselves are immediately and easily separable.
Most often, the two attributions come together unless the fact finder has
any reason to consider doubts about her own perceptions of what the wit-
118 See also Schauer, In Defense, supra note 4 at 30001 (on the need for exclusionary
rules in the service of the characteristically legal goals of reliance and predictability
and stability).
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ness reported, or when she has reason to doubt the witnesss access to the
information presented but then gets corroboration of that information.
The fact finder also must make further attributions of knowledge to her-
self based upon the accumulation of evidence and considerations raised by
the lawyers and the judge.119 As far as the rules of evidence are concerned,
it is always the circumstances of the fact finder as attributor that need to
be controlled vis–vis which possibilities are open or closed to considera-
tion in making knowledge attributions.
It is clearly the case that reliable hearsay increases the probability
that knowledge attributions made about the propositions contained with-
in that hearsay are true, and that those knowledge attributions are there-
fore better justified than if made without that evidence. The problem is in
limiting the consideration of whether to admit this evidence by focusing
exclusively on the reliability of that piece of evidence, without considering
the wider impact on epistemic standards. This is not to say that hearsay
should be entirely excluded. Rather, it is to resist the claim that having
the court assess its admissibility on the basis of reliability alone is suffi-
cient (and to resist more forcefully calls for free proof). Hence, simply
pointing out the many cases in which hearsay is useful in coming to an
outcome that is deemed correct is not an answer to this complaint.
One might say that the rules of evidence are more about truth than
about knowledge. Both the United States Federal Rules and various Ca-
nadian cases specifically state that the purpose of the admissibility rules
is to enhance and ensure the reliability of information presented, or to
help fact finders decide whether witnesses are telling the truth.120 Indeed,
much of the fact finders decision making is taken up with deciding what
to believe, using various indicia of truthfulness and reliability for the wit-
nesses from whom they hear testimony. But this is not really a criticism.
In deciding what to believe, fact finders are deciding what witnesses actu-
ally know, where the truth of what witnesses report is affected by their
motivations and propensity for dissembling, and by their reliability at
coming to the knowledge they profess to have. Fact finders are therefore
making knowledge attributions to witnesses, and then to themselves on
the basis of what they hear from witnesses.
The fact that evidence rules may only occasionally employ the term
knowledge does not mean that they are not still dealing with the condi-
119 For a helpful canvass of the ways in which fact finders can come to warranted self-
ascriptions of knowledge without basing those ascriptions on the witnesses relation to
the content of their testimony, see Pardo, Testimony, supra note 53 at 14041.
120 See e.g. R v Seaboyer; R v Gayme, [1991] 2 SCR 577 at para 65, 1991 CanLII 76; Fergu-
son, supra note 3 at 593, n 18.
LESS EVIDENCE, BETTER KNOWLEDGE 207
tions of knowledge attributions. In navigating our daily lives, we are con-
stantly making knowledge attributions to others and to ourselves in de-
termining what to believe and only occasionally do we use the term. In the
courtroom, we have a collective interest in ensuring that the standards by
which knowledge is attributed are linked to the standards of proof the law
demands for the case. We want criminal convictions to take place only
when the fact finder can attribute knowledge of guilt to herself beyond a
reasonable doubt.
In civil cases, we want results to be based on knowledge attributions
that reflect the preponderance of the evidence. This might allow for some
results not to be based on knowledge, strictly speaking, since one might
believe the preponderance of the evidence favours one result but not at-
tribute knowledge to oneself in reaching that result. But even that only
threatens the knowledge basis of the outcome itself. Fact finders are still
making plenty of knowledge attributions in determining what to believe
by a preponderance of the evidence. That is, each piece of evidence in de-
termining what the preponderance yields itself involves a knowledge at-
tribution. Hence, the rules of evidence still take knowledge as the baseline
of what fact finders are trying to reach; therefore, the exclusionary rules
are still an attempt to bind the context of any knowledge attributions to
the particular epistemic environment of the courtroom.
When we step back and consider the wider fairness of our criminal
justice system, the epistemic problem with freer admissibility of even reli-
able hearsay becomes starker. Since not all cases will involve the intro-
duction of hearsay evidence, there will tend to be differing contextual
standards of justification for knowledge attributions in criminal cases that
do involve the admission of hearsay from those that do not. Trials that in-
volve the admission of information about which knowledge attributions
are made using what I have called our quotidian epistemic apparatus will
have lower standards for many knowledge attributions involved in deter-
mining outcomes. In essence, it is easier to make warranted knowledge
attributions in those cases than in cases where such information is ex-
cluded or not present. One effect of this is that trials involving hearsay
and other such information, covered by epistemic evidence rules, involve
different standards of justification for knowledge attributions than trials
that do not. The very nature of the evidence presented at trial affects
what doubts (possibilities) are reasonable to consider.
An implication of this discussion is that what counts as a reasonable
doubt depends on the context. What is properly ignored under Lewiss
rules, and under contextualism more generally, partially determines
which doubts are reasonable. While the possibility that the witness and
fact finder are brains in a vat may never be a reasonable doubt, if the evi-
dentiary rules and circumstances of the case allow a real possibility that a
witness was hallucinating, then raising that possibility to the attention of
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the fact finder likely creates a reasonable doubt where the witness is giv-
ing the only evidence of a material fact.
If I am right that the admission of hearsay lowers the epistemic con-
text, then where it is admitted, fewer possibilities to defeat knowledge at-
tributions will be reasonable, and more can properly be ignored unless
raised to attention. Criminal defendants are therefore not being tried ac-
cording to a uniform standard of proof beyond a reasonable doubt since
the reasonableness of the doubt is dependent on the context. Admittedly,
this is already an imprecise standard; given the differences in evidence
presented, judges, and fact finders, there is necessarily going to be consid-
erable variation in what constitutes the reasonable doubt standard. How-
ever, contextualism about knowledge shows that the admission of hearsay
makes it even more elastic, where we are best served trying to minimize
that elasticity.
One might note that all of a prosecutors evidence will tend to make it
more difficult for knowledge attributions about facts in support of the de-
fenses case to be justified, so there is nothing special about these epistem-
ic considerations. But the point here is not about the crucible of duelling
factual claims inherent in the opposing sides cases. It is very likely that
every piece of information presented by one side will tend to undermine
the story being told by the opposing side. Rather, the introduction of any
evidence that requires the fact finders quotidian epistemic apparatus will
tend to lower the otherwise heightened standards called for by the stand-
ard of proof. The context in which we use the quotidian epistemic appa-
ratus (that is, the more familiar epistemic circumstances of daily life) is
one in which more doubts are properly ignored. Hence, drawing the fact
finder into that context makes it harder for doubts to be reasonable (in
that more doubts are properly ignored). While making it easier to dismiss
or ignore doubts could be used against either side, in a criminal trial it is
more of a detriment to the defendant.
One might note that the admission of hearsay can just as easily be
used against the prosecution as against the defendant. An easy reply to
this is that the hope of more uniform standards for criminal trials should
be seen as valuable for the prosecution as well as for the defense. This
might, however, lead to a concern that defendants are being denied access
to valuable exculpatory evidence.
There are two replies to this concern, which cut in opposite directions
dependent on ones views of whether it is more just to focus on the uni-
formity of standards or on the preferential treatment of defendants. One
reply would be to say that since the law is trying to pin a context for the
meaning of knowledge to the beyond a reasonable doubt standard found
in the criminal trial, the admission of hearsay by either party jeopardizes
the contexts justificatory standards, and it should not be admitted unless
LESS EVIDENCE, BETTER KNOWLEDGE 209
there is some way of maintaining the high standards context. That is,
hearsay would be more acceptable if there were some way to ensure that
it would not present itself as hearsay to the fact finder such that she
would revert to her quotidian epistemic apparatus, instead of maintaining
the higher contextual standard.
Those sympathetic to this reply might countenance proposals to couch
the admission of hearsay evidence with extra cautions by the judge, or
perhaps more radically, with demands that witnesses include some warn-
ing in their testimony about the reliability of the hearsay evidence. Oth-
erwise, on this view, hearsay should not generally be admitted for fear of
allowing the contextual standard to float too freely, while exceptions
should be limited, detailed, and rule based where those rules are sensitive
to the impact of the kind of hearsay on the epistemic context.
The other possibility would be to allow hearsay if presented by de-
fendants, allowing them to parse for themselves whether the advantages
of the hearsay information outweigh the relaxed epistemic standards and
sacrifices to the uniformity of those standards across trials. This would
give defendants the option of relaxing the epistemic standards if they be-
lieved that the information they can get in by doing so will be helpful to
their case. It would sacrifice greater uniformity in epistemic standards
across trials for the sake of allowing defendants to present potentially ex-
culpatory evidence.
In admitting hearsay and relaxing the epistemic standards of their
trials, defendants would be making more actual or potential doubts un-
reasonable and properly ignored by fact finders. Recalling Lewiss permis-
sive rules, discussed above, fact finders may ignore doubts that suggest the
witnesss normal ways of coming to knowledge are misfiring or that there are
other explanations for the witnesss experiences than the content of his re-
port. When those kinds of doubts are raised to fact finders as live possibili-
ties, they are then reasonable doubts (both legally and epistemically). When
hearsay is introduced and the epistemic standards are thereby depressed,
more of those doubts will again be properly ignored and hence unreasonable.
But perhaps this is the gamble we should leave in defendants hands.
Either way, all other considerations being equal, greater uniformity of
epistemic contexts for criminal trials would clearly tend to be more fair than
allowing these contexts to float with only reliability and necessity to guide
admissibility.
These more practical considerations might give rise to another objec-
tion:121 that it is not the role (or expertise) of the court to make determina-
121 I thank an anonymous reviewer for this journal for raising this point.
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tions regarding the epistemic context of the trial, and that these consider-
ations are simply too rarefied for treatment by judges. While it is certainly
doubtless that we cannot expect our judges to appreciate and apply the
implications of complex epistemological arguments alongside their exist-
ing arduous tasks, we can expect them to have a heightened sensitivity to
epistemic contexts if such were mandated by statutory rules or controlling
precedent. That is, the suggestions outlined here do not require as much
philosophical subtlety as did the argument in their favour. It is enough in-
itially to demand that those arguing for an increase in exceptions or a re-
laxation of exclusionary rules address the epistemic implications of their
policy recommendations before courts or legislatures decide to enact them.
Where such changes have already been made, these considerations
should be seen as arguing for a return to a more rule-based exclusionary
regime as against one that increases judicial discretion regarding the ad-
missibility of hearsay and similarly problematic evidence. In other words,
the objection can be turned on its head: if these epistemic considerations
are valid, the very inability of judges to apply them is an argument in fa-
vour of reduced discretion.
Furthermore, apart from the rationale for this sensitivity, I am not
sure that judges are so incapable of deploying sensitivity to epistemic con-
text when and where judicial discretion is unavoidable. While the finer
points of epistemic contextualism may be beyond their purview, it would
be enough for judges to be mindful of the implications that admitted evi-
dence has on shifting justificatory standards. We are already used to the
fact that the beyond a reasonable doubt standard (for example) shifts
from trial to trial, and that it is part of a judges job to minimize this
movement by giving guidance to fact finders. If we merely point out that
the kind of evidence admitted at trial can itself have an impact on which
doubts are reasonable, judges may see that as an additional reason in fa-
vour of excluding evidence that makes more doubts unreasonable.
One might raise a more philosophical objection here. Since the contex-
tualist point is that the meaning of knowledge changes with the context, it
would seem that there could be no cause for complaint. Knowledge is
simply easier to come by in cases where hearsay is presented. No one
should complain about that, since the only criterion we should be con-
cerned with is that cases are decided on the basis of warranted attribu-
tions of knowledge. Where it is easier to make such a warranted attribution,
the meaning of knowledge is relaxed, but it is still the case that in every
criminal trial the standard is knowledge beyond a reasonable doubt. Even
if the meaning of knowledge shifts, since the standard is tied to that mean-
ing, we cannot complain when the standard is affected by that shift.
The reply to this objection starts with the realization that the rules of
evidence function as a bulwark against the variable and shifting contexts
LESS EVIDENCE, BETTER KNOWLEDGE 211
in which we make knowledge attributions outside the courtroom. While
much of evidence scholarship is focused on the use of legal evidence rules
in guaranteeing the reliability of information presented in court, the ulti-
mate point of that focus is the need for fact finders to have good reasons to
believe in their determinations of what is true and false at trial. While not
detailing the form that epistemic justifications must take,122 what contex-
tualism shows us is that there is more to the notion of a good epistemic
justification than simply the reliability of the information.
Just as we would not want the outcome of a trial to be dependent upon
the notion that a glass with a few drops left is not empty, while another
trial is dependent upon a swimming pool with a only few drops left being
properly considered empty, we do not want some criminal trials to be
based on one set of what constitutes good reasons to believe, while others
are based on a radically different set of what makes for good reasons.
While it is true, according to contextualism, that the meaning of
knowledge changes according to the context, what brings about that
change is the shifting standard of epistemic justification from context to
context. The fact that criminal law gives us a specific (although vaguely
defined) standard of proof indicates that the law is seeking to limit those
shifts. Since the rules of evidence are understood in terms of their relation
to that standard of proof, we can understand them as an attempt to pre-
vent shifts in the epistemic justificatory context in addition to the tradi-
tional understanding of them in terms of their control on the reliability of
the information presented at trial.
Another objection notes that since every piece of information has a
slightly different context from every other, focusing on hearsay as a class
to be excluded is useless. The context will shift rapidly even with hearsay
evidence excluded: even eyewitness statements will present different con-
texts from documents, and these will differ from expert testimony about
physical evidence.123 Even within each of these types of evidence, the con-
texts will differ greatly from one piece to another. Given this huge diversi-
ty of contexts, the legal system cannot hope to make bright line distinc-
tions nor treat criminal defendants equally, as the kinds of evidence
available in each case will be vastly different.
122 See DeRose, Contextualism: An Explanation and Defense, supra note 82 at 190.
123 The contextual standards for each piece of information is tied to its source, such that it
is permissible to admit expert information that was itself based on hearsay, where that
hearsay is an acceptable path to knowledge in the experts scientific context. Note that
the experts reporting of information that relied on hearsay in the scientific context does
not require the fact finder to activate her quotidian epistemic apparatus when she
hears the expert opinion in the courtroom. I thank Michael Pardo for suggesting this
clarification.
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This is, of course, absolutely true. But we can still make a distinction
between those kinds of information that are evaluated differently in the
courtroom and those that call up only what I have called our quotidian ep-
istemic apparatus. While the task of differentiating types and contexts of
evidence may be too much for the legal system to hope to handle exhaust-
ively, this does not mean that it should not still seek to minimize the im-
pact of those varying contexts on criminal verdicts. We cannot hope to
promise criminal defendants that they will be tried using a perfectly uni-
form set of epistemic justifications, but we can at least offer them a slight-
ly less chaotic set of contextual standards. Consistency in epistemic
standards is an ideal that we cannot hope to achieve perfectly. Yet that
fact is not a reason not to maximize that consistency to whatever extent
possible.
I would be remiss if I did not distinguish this argument from that of
two evidence theorists who advance arguments against hearsay on the
basis of epistemological claims. Ho Hock Lai argues that the introduction
of some hearsay should be restricted out of considerations of justice. How-
ever, his focus is on the moral considerations owed to the fact finder in her
epistemic process124 rather than the implications that the epistemic con-
text has for criminal defendants.
Ho also argues that we must separate the rule against the using of or
reasoning based on hearsay evidence from the technique of enforcing it,
which is generally exclusion.125 While I agree with this for the most part,
it leaves out an important piece. Where the out-of-court statement is not
being offered for the content of the evidence but for other purposes (for
example, fear in the callers voice126), and if it is possible to isolate the jury
from the content and have them focus merely on the context, then that is
not necessarily requiring their quotidian epistemic apparatus and de-
pressing the contextual standards. But at the same time, seen from the
standpoint of epistemic contextualism, the technique of enforcing the
hearsay rule (exclusion) is not as isolated from the content of the rule as
Ho envisions it. If the danger of hearsay is the lowering of epistemic
standards, then we are not only concerned with how the fact finder will
use or reason on the basis of hearsay. We are worried about what the
hearsay will do to the epistemic context of the trial. Hence the exclusion is
itself an element of maintaining that high standards context.
True, to be hearsay, the evidence must be offered to support the truth
of the matter asserted therein, and it is the focus on that usage of the tes-
124 See Ho, A Philosophy of Evidence Law, supra note 59 at 26873.
125 See ibid at 243.
126 See ibid at 243, citing Ratten v The Queen, [1972] AC 378 at 387, [1971] 3 WLR 930.
LESS EVIDENCE, BETTER KNOWLEDGE 213
timony that creates the epistemic problem. Evidence that would otherwise
be hearsay may not require the quotidian epistemic apparatus where the
use of the testimony (assuming this can be isolated from its content) is to
show, for example, the emotional state of the declarant or her ancillary
beliefs. To access those aspects of the testimony, a fact finder probably
needs to have her attention specifically directed at them, and so it is not
employing the quotidian epistemic apparatus.
The other argument is that of Craig Callen, who uses the linguistic
theories of Paul Grice to argue that hearsay interferes with the fact find-
ers ability to assess properly the conversational implicature or communi-
cative intention of the declarants statement.127 Callen is partially con-
cerned with using Grices theory to delineate more clearly between hear-
say and non-hearsay.128 The main argument appeals to the need for fact
finders to employ their everyday epistemic abilities in reaching their con-
clusions.129
While I agree with the general push to provide a firm basis for hear-
say exclusions, my argument differs from Callens in several key places.
For one, my focus is more directly on epistemology while his is on the pos-
sibilities and norms of communication, both generally and between the
declarant and fact finder. Furthermore, while Callen is investigating
those norms of communication from the standpoint of fact finders normal
epistemic and communicative abilities, I am emphasizing the need for the
court to project a rarefied epistemic air so as to maintain a higher stand-
ards context, and specifically to avoid depressing that context by appeal-
ing to those normal epistemic abilities.
Conclusion
The rules of evidence are about knowledge, of which truth is a part.
But truths can only be useful to a trier of fact where she also has good
reason to believe those truths. Hence, the rules of evidence must be about
determining the conditions under which information is to be displayed in
court so that triers of fact can have good bases for their beliefs in that in-
formation.
Contextualism is simply a philosophical elaboration upon the basic
point that what counts as good reason for belief varies depending on the
127 See Craig R Callen, Hearsay and Informal Reasoning (1994) 47:1 Vand L Rev 43 at
6062, citing Paul Grice, Studies in the Way of Words (Cambridge, Mass: Harvard Uni-
versity Press, 1989) at 2627.
128 See Callen, supra note 127 at 82.
129 See ibid at 8689.
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context in which the information is considered. The courtroom is a special
context that needs to maintain that special quality. So epistemic rules of
evidentiary admissibility serve to maintain the quality of that special con-
text and fix what counts as good reason to believe the information pre-
sented. The admission of hearsay puts the fact finder in a context in
which it is easier for her to have good reasons to make attributions of
knowledge. This means that knowledge attributions are more easily made
true in those cases, and that criminal defendants are not being treated
uniformly by the process.
