Discussion (1L): How Does Criminal Law "Know" the Truth?

Litigation is supposed to be a search for truth, and this search is especially important in criminal law, where outcomes involve the maximum power of the state against the individual, and the consequences of error seem intolerable. But how does criminal law determine the "truth"? Does criminal adjudication represent an epistemological system -- a system for producing knowledge? Or is it something else entirely? This set of issues necessarily implicates a wide variety of legal doctrines that you will be exploring throughout your legal education, but in this short course we will sample provocative excerpts from case law, jurisprudence, social science, and history to address several questions. First, what are the procedural standards of proof that determine the kind of truth criminal justice demands? How much more important is it to avoid wrongful conviction of innocent persons than to convict the guilty? Can statistical evidence alone ever be enough to establish guilt? And how do legal "presumptions" affect our determinations of the "facts" of a case? Second, does the criminal justice system address the many ways that witnesses, even when confident and morally honest, get the truth wrong? For example, eyewitness identifications are highly persuasive evidence -- but DNA exonerations and social science research reveal they are frequently unreliable and incorrect. How does/should the system mitigate this problem? Why does the public view seem to view "direct evidence" as more persuasive than "merely" circumstantial evidence? What does social science research tell us about the phenomenon of people falsely confessing to crimes? How confident are we in the forensic "science" testimony that expert witnesses may offer? Third, in what way is the "truth" as determined by our criminal justice system shaped and sculpted by the government? Does the system do anything to mitigate the natural effects of "tunnel vision" -- or does it instead exacerbate it by aiming for satisfying narrative coherence at the risk of falsehood? Does the Miranda rule obviate coerced confessions? Why are police officers allowed to lie to suspects? Should prosecutors be allowed to offer a person leniency in exchange for testimony against others? Finally, how good are American juries at truth-finding, and does our system have any controls in place for correcting factual error? Can jurors accurately detect deception in witnesses? What types of biases might afflict honest jurors and how can the law deal with them? Does our system have adequate ways of correcting factual errors after an adjudication? How should that goal be balanced with an interest in finality and other values? Class meets 6:00 PM-8:00 PM on Sept. 28, Oct. 12, Oct. 26, Nov. 9.