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UNSAFE NONKNOWLEDGE DOES NOT MEAN THAT KNOWLEDGE MUST BE SAFE
Published online by Cambridge University Press: 28 June 2011
In “The Gettier Problem and Legal Proof,” I argue that epistemic conditions that undermine knowledge in Gettier-type cases also potentially undermine legal verdicts. For this reason, I argue, there is a deeper connection between knowledge and legal proof than is typically presupposed or argued for in the scholarly legal literature. To support these claims, I present several examples illustrating how conditions that render epistemically justified beliefs merely accidentally true (and thus disqualify them as cases of genuine knowledge) may also render evidentially well-supported verdicts merely accidentally true for similar reasons. Such “Gettierized” verdicts, I contend, fail to realize the epistemic goal or aim of legal proof. Thus I conclude there, legal proof includes something like a knowledge requirement—in the sense that legal verdicts aim not only at truth and sufficient evidential support but also, as with knowledge, at an appropriate connection between their truth and justifying evidential support.
1. Pardo, M.S., The Gettier Problem and Legal Proof, 16 Legal Theory 37 (2010)CrossRefGoogle Scholar.
2. See Gettier, Edmund L., Is Justified True Belief Knowledge?, 23 Analysis 121 (1963)CrossRefGoogle Scholar.
3. In drawing attention to this connection, I also concede that successful legal verdicts may fail to qualify as knowledge for other reasons.
4. For example, the analysis runs orthogonal to and does not depend on many of the competing claims made by internalists, externalists, reliabilists, coherentists, virtue theorists, and naturalists regarding knowledge and justification.
5. Of course, to say virtually anything at all about knowledge will invoke some contested presuppositions about these concepts, but given my focus, I rely in the article on relatively uncontroversial aspects.
6. For an overview of the literature, see Lycan, William G., On the Gettier Problem Problem, in Epistemology Futures 148 (Hetherington, Stephen ed., 2006)Google Scholar.
7. McBride, Mark, Reply to Pardo: Unsafe Legal Knowledge?, 17 Legal Theory 67–73 (2011)CrossRefGoogle Scholar.
8. Id. at 67.
9. Id. at 72 [“This all suggests the following trilemma . . . : (1) retain his central claim that (safe) knowledge is the goal or aim of legal proof and deny Insecure Mafia is a case of knowledge; (2) retain his central claim that (safe) knowledge is the goal or aim of legal proof and deny Insecure Mafia is a case of unsafety; or (3) withdraw his central claim that (safe) knowledge is the goal or aim of legal proof.”]
10. Id.
11. See Pardo, supra note 1, at 52 n. 61. In my article, I discuss four other examples of potentially Gettierized verdicts and do not analyze their potential problems in terms of safety.
12. Id. at 56 n. 81.
13. Id. at 52.
14. This epistemic notion of safety is distinct from the British legal standard of an “unsafe verdict,” which refers to criminal convictions in which there is lingering doubt. For a discussion of the latter, see Risinger, D. Michael, Unsafe Verdicts: The Need for Reformed Standards for the Trial and Review of Factual Innocence Claims, 41 Hous. L. Rev. 1281 (2004)Google Scholar. Epistemic safety is also distinct from the related modal notion of sensitivity. For a discussion of the distinction, see Pritchard, Duncan, Safety, Sensitivity, and Antiluck Epistemology, in The Oxford Handbook of Skepticism 437 (Greco, John ed., 2008)Google Scholar.
15. That is, there does not appear to be the sort of accidental connection between the verdict's truth and justification that is present in Gettier situations. Although the facts could be altered to Gettierize this verdict, McBride is correct that I claim that verdicts ought not be Gettierized, not that they ought not to be Gettierizable.
16. The verdict would not qualify as knowledge if the defendant contested identity and presented a plausible case that he is not the person the prosecution claims him to be. See Allen, Ronald J., Factual Ambiguity and a Theory of Evidence, 88 Nw. U. L. Rev. 604 (1994)Google Scholar.
17. Regardless of how one draws the line between “safe” and “unsafe,” the verdict in this example appears to fall on the “unsafe” side.
