1In the following pages, I will set out to explore the meaning of the assertions according to which “judicial findings with false factual statements are errors”. This examination stems from conclusions drawn in another work.1 The work in question analysed the thesis according to which “the truth of factual statements is a necessary condition for the proper application of judicial rules and therefore for the justification of court findings”. I call it the thesis of the truth as a condition of justification (TTC).
The thesis of the truth as a condition of justification
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(TTC)
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The truth of the factual premise is a necessary condition for the proper application of legal rules and therefore for the justification of a court finding.
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2The aforementioned work disambiguates the TTC, showing the different versions that such a thesis can take on, rejecting them one by one. These successive rejections eventually suggest the opposite thesis, according to which the truth of factual statements is not a necessary condition for the proper application of rules or for the justification of court findings.
3However, it does not suffice to rule out the most obvious versions of the TTC. Because the intuition, undoubtedly strongly rooted, and according to which rulings with false factual statements are wrong, persists. Many people seem to subscribe to this approach. Some of them may even be willing to accept that the TTC lacks foundation in these more superficial readings. Therefore, this paper will analyse some additional versions of the TTC, which depend upon the notion of error in law. According to these additional versions of the thesis, even when it would make sense to say that the truth of factual statements is not a necessary condition for the proper application of general legal rules or for the justification of court findings, these findings must in any event be regarded as errors of the justice system.
4I will attempt to demonstrate that however intuitive this thesis may seem, it needs to be highly nuanced, if not rejected out of hand. To this end, in § 2 I will synthetically reconstruct the arguments that precede this work, above all for the purpose of making it independent. I shall then go on to address the versions of the TTC that link it to the notion of error. In § 3 I will analyse the TTC as a way of expressing the idea according to which court findings with false factual premises are either errors attributable to the judge or to the justice system. After showing that such a version of the TTC is an exaggeration, in § 4 I will assess the possibility of understanding the thesis as a corollary of the political and moral intuition according to which any court finding whose factual premise is false is morally wrong in the sense that it constitutes an injustice. I shall set out some arguments to nuance this intuition. In § 4, I will comment upon certain theses that maintain that what causes justice systems to become flawed is when they exceed a certain number of court findings with false factual premises.
- 2 With regard to the ambiguity of the term “case” and the difficulties that it generates, please refe (...)
5A court ruling or finding may be regarded as an argument whose conclusion is an individual rule resulting from applying a general legal rule to an “individual case”.2 This individual rule, the product of the application of a general rule, is the content of the finding or simply its result. In contrast, the expression “court finding” is sometimes used to allude to the finding-act which is nothing other than the conduct of the person applying the general rule to the “case”. Here, this label is used with the first meaning in mind.
6In legal philosophy, it is very common to assert that a court ruling is justified, just like any other argument, to the extent that the requirements of two dimensions of justification are fulfilled. According to the first dimension, which pertains to internal justification, a court ruling is justified if the conclusion, i.e. the individual rule, is a logical conclusion of the normative and factual premises. According to the second dimension, which pertains to external justification, a court ruling is justified if its premises taken individually are also justified.
7Determining the conditions under which the premises of arguments may be regarded as being individually justified is no easy task. And neither is, and more particularly so, establishing the conditions of justification of the argument that we call “court rulings”. I will not dwell upon the question of the external justification of the normative premises, usually linked to matters of judicial interpretation. I shall focus, on the other hand, on the external justification of factual premises: the area specific to evidence and proof. In this perspective, everything indicates that a factual premise is externally justified if it is sufficiently supported by the evidence.
8If someone considers that the internal justification and the external justification of court rulings are individually necessary and jointly sufficient conditions of justification of a court finding, then they must also assume that the internal and external dimensions exhaust the demands of justification of court findings. In other words, they adopt what in the aforementioned work I called the thesis of exhaustive justification. According to this assumption, and once the internal and external justification criteria have been met, we cannot make any further demands upon people who are called upon to apply the legal rules through rulings in our legal systems.
9This leads us to three main theses:
The thesis of exhaustive justification
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(TJExh)
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The internal and external justification are individually necessary and jointly sufficient conditions of justification of the court finding.
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The thesis of internal justification
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(TIJ)
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The court finding is internally justified if the finding-qua-individual rule follows from a general rule and a factual premise.
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The thesis of external justification – Proof condition thesis
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(TEJ‑PCT)
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The factual premise is externally justified if there is sufficient evidence in its favour.
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10Nevertheless, this becomes problematic, since, in the light of these three theses, it would appear to be perfectly feasible for a ruling to be exhaustively justified and at the same time for the factual premise to be false. The counter-intuitive consequence to which the three theses may lead is normally illustrated in the domain of legal philosophy by means of a literary example. In The Brothers Karamazov, by Fyodor Dostoevsky, Dmitri Karamazov is accused, tried and convicted of killing his father. Although things are somewhat more intricate in the novel, let us assume that the case was tried and judged flawlessly in terms of modern legal guarantees. Let us assume, first and foremost, that the (statement about the) fact that Dmitri killed his father was duly proven in court. The ensuing guilty verdict could be presented in the following way:
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[General rule] Ni: Manslaughter. Any person that kills another must be sentenced to punishment X.
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[Factual premise] Dmitri Karamazov killed his father.
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[Conclusion = Finding rule] Dmitri Karamazov must be sentenced to punishment X.
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- 3 It is very important to realise that if we know, without a shadow of a doubt, that Dmitri Karamazov (...)
11However, it transpires, as the author of the novel tells us, that although the actual occurrence of the event was proven, Dmitri had not committed the crime he was accused of.3 Hereinafter, I will refer to this type of verdicts as K verdicts. These are rulings that satisfy the requirements of the exhaustive justification thesis (i.e. they are internally and externally justified) but which nevertheless contain a false factual premise.
- 4 It is normally assumed that normative premises cannot be true (or false), since the rules lack true (...)
12The stridency that is caused in these situations (however real or imaginary they may be) has led many people to hold that K verdicts lack justification. This view is based on the assumption that the truth of the factual premise is a necessary condition for the proper application of rules and therefore for the justification of the court finding.4 Paolo Comanducci, citing the case of Dmitri Karamazov, has argued as follows in this regard:
The guilty finding is not justified, as a result, since the individual rule expressed by the ruling is not justified by the substantive rule of manslaughter, because such a rule is not internally applicable in that Dmitri did not murder his father.5
13In the same line, Eugenio Bulygin had maintained, some years previously, that:
- 6 Bulygin 2021 [1985]: 298.
... the fact that the judge’s ruling, albeit lawful [since guilt was proven in the trial], is not justified by criminal law [given that the proven premise is false] renders it possible to say that it is based on a wrong decision and that (...) a judicial error was made.6
14This way of seeing things is fairly widespread among specialists, although it is not clear what the reasons that support adherence to this thesis are. Because this posture seems obligated to accept at least one of the following three theses:
The thesis of the truth as a condition of the internal justification
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(TTCInt)
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The truth of the factual premise is a necessary condition for the internal justification of the court finding.
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The thesis of the truth as a condition of the external justification
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(TTCEXT)
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The truth of the factual statement is a necessary condition for the external justification of the factual premise of the court finding or for the external justification of the normative premise of the court finding.
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The thesis of non-exhaustive justification
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(TJNoEXH)
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The internal and external justification, even if they are necessary conditions for the justification of the court finding, do not constitute jointly sufficient conditions.
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15The first and second theses are two different versions of the thesis of the truth as a condition of justification (TTC). The third thesis assumes that there is a different dimension of justification additional to the internal and external dimensions. Within the framework of this additional dimension of justification – and unlike that which hypothetically occurs with the internal and external justifications – the truth of the factual premise of the court finding is a necessary condition for justification. Elsewhere, I attempted to show that the three theses are inadequate, meaning that the posture criticised leads to a trilemma. The arguments are succinctly summarised below.
16The TTCInt is unacceptable because it assumes that the truth of the factual premise conditions the logical relationship between the normative and the factual premises, which is an evident mistake. This mistake, if someone actually makes it, could be the result of a rather incautious treatment of the notion of the internal applicability of legal rules. However, this does not need to be addressed here. The important point is that it is absurd to assert that the truth of the factual premise of the court finding is a necessary condition for the logical validity of the inference.
17Both variants of the TTCExt are unacceptable. On the one hand, the truth of the factual premise is not a necessary condition for the external justification of this premise, even if the ideal aim of this justification is to reach true conclusions. The justification criteria of the factual premises of court findings may be identified with those that govern the justification of any other factual statement in any domain of empirical research. In other words, the justification of the factual premises of court findings is nothing more than epistemic justification. And as also occurs in any other domain of empirical research, a statement about certain facts may be justified but nevertheless still be false. The second variant of the TTCExt holds that the truth of the factual premise conditions the external justification of the normative premise. Reconstructing this idea rapidly, it means that a general legal rule does not constitute a reason justifying the action unless the facts that condition its application have actually occurred, in other words unless the factual premise is true. I have argued that this version of the thesis is based on an over-demanding– and therefore somewhat unrealistic – concept of practical justification. I argued that, in my opinion, a rule Ni – be it legal or of any other kind – is a justificatory reason for a person P for an action Φ, to the extent that P is epistemically justified in accepting the factual condition of Ni as true.
- 7 Davidson, 2001 [1983]. In any event, the argument is directed specifically against epistemological (...)
18The only remaining option would be to reject the thesis of exhaustive justification. This requires, as was already seen, having recourse to a sense of “justification of court findings” that does not lead to internal or external justification. I have argued that while reasons worthy of consideration in favour of such a sense or meaning of “justification of court findings” do not seem to have been mooted, this strategy would have to negotiate a seemingly impossible pitfall, to wit: it would have to be capable of demonstrating that there are relationships of justification between facts, on the one hand, and propositions or rules on the other. This is something that Donald Davidson rejected quite some time ago.7
19To my mind, the posture under discussion cannot emerge unscathed from this trilemma. However, the idea that a “court finding with a false factual premise is wrong” subsists among specialists. This transforms the thesis of the truth of as a condition of justification (TTC) into a thesis related to legal error: the truth of the factual premise is a necessary condition for the absence of legal error (TTCE).
The thesis of the truth as a condition for the absence of legal error
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(TTCE)
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The truth of the factual premise is a necessary condition for the absence of legal error.
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20In the following paragraphs I will introduce a significant number of nuances into the notion of error. I will argue that, in very specific circumstances – perhaps only ideal ones – it is perfectly possible to say that court findings with false factual premises are not judicial errors and nor are they errors of the justice system and that, with certain precautions, neither are they injustices in political and moral terms (quite the opposite).
21If what has been said hitherto is right, a court finding may be fully justified – and a rule may be properly applied – even if the factual premise is false. The truth of this premise is not a necessary condition for the internal justification or the external justification of a court ruling. In the light of this second dimension, at least in principle, the falsity of statements about facts does not block the justification of the factual premise nor of the normative premise. Having recourse to a third meaning of “justification”, in view of the lack of plausibility of such a claim, ultimately appears to be nothing more than an ad hoc plea so as not to abandon the TTC.
22Nevertheless, and even conceding the foregoing, someone might continue to argue that cases such as Dmitri Karamazov’s are an epistemic judicial error, given that the factual premise is false. The new version of the TTCE would be TTCJE:
The thesis of the truth as a condition for the absence of judicial error
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(TTCJE)
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Although the truth of the factual premise is not a necessary condition for the justification of the court finding, a court finding whose factual premise is false must constitute a judicial error.
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23Here I think that we should proceed with caution. This is because these statements could lead one to think that on the basis of the statement according to which (a) “findings with false factual premises are wrong” it follows that (b) “findings with false factual premises are unjustified”. Or one thing could even be assumed to be the same as the other. However, both assumptions would be wrong.
24The distinction made by Larry Laudan with regard to the “errors” that can be identified when factual premises are established may be of help in this point. Among the errors that may be made with regard to factual questions in law, the ones that gave Laudan greatest cause for concern are the ones he called “false verdicts”. There are two variants of these errors. One class of false verdict obtains when true factual premises are nonetheless regarded as not-proven by the trier of fact (false negatives). In the criminal domain, this translates into acquitting people who had actually committed the offence with which they were charged and tried. Using a label which I find misleading and inopportune, Laudan called such findings “false acquittals”. The other class of false verdicts obtains when false factual premises are eventually regarded as proven by the trier of fact (false positives). In criminal law, this translates into convicting people who had not actually committed the offence with which they were charged and tried, as happened with Dmitri Karamazov. Laudan calls them “false convictions”.
25With regard to these two variants of “false verdicts”, Laudan highlights the possibility of a different type of “error” that he calls “invalid verdicts”. The latter occur, in the Texan author’s opinion, since the (i) fact-finder gives more or less weight to certain item of evidence than what “it genuinely merits” or (ii) misconceives the height of the standard of proof that they should apply.8 In broader terms, we may say that a verdict is invalid when the fact-finder errs in their evidentiary reasoning.
- 9 As of now I would draw attention to another terminological item commonly used by the author: Laudan (...)
26The two types of “error” are logically independent, meaning that there may be valid true verdicts, invalid true verdicts, invalid false verdicts and valid false verdicts.9 It is clear that the case of Dmitri Karamazov falls within the final class, i.e. it is a false verdict, albeit – as we assumed in § 2 – valid. According to this assumption, the validity of the verdict is the result of the evidential reasoning employed by the fact-finder being faultless. As we have seen, in similar situations, the court finding may be regarded as fully justified from the judicial standpoint, at least in the sense that a court finding is accepted as justified if it is internally and externally justified. In the words of Bulygin cited at the outset, this is what seems to be indicated when a verdict is said to be “lawful”. In the remaining part of this work, I shall assume that we are always dealing with legally valid, lawful verdicts or, in short, legally justified ones.
27Therefore, and even in the case of justified rulings in this specific sense, the version of the TTC that we now address maintains that these rulings constitute an error, since their factual premises are false. As we have already seen, Bulygin specifically said that these verdicts are judicial errors. I think that this is misleading.
- 10 Laudan 2006 and 2013: § 3. He also distinguishes, for the purpose of his analysis, between false ve (...)
28First and foremost, if a court finding is justified, particularly if its factual premise is, then it makes no sense to say that there is a judicial error. Saying that the factual premise is justified (i.e. that the ruling is “valid” in this specific dimension) is equivalent to saying that the fact-finder has not made any mistake in terms of reasoning. Meaning that, contrary to what Bulygin appears to think, there is no judicial error. A “false verdict” may be the result of the epistemically faultless and irreproachable activity of the people who investigated and tried the case.10 This was suggested some time ago by Ferrer Beltrán, who held:
- 11 Ferrer Beltrán 2005: 97, note 27.
In some regards, it may be said that in these cases a judicial error does not take place. Since these are cases in which the judge is legally (and sometimes rationally) obliged to find that the facts are proven, at best it may be said that the judicial system has failed in the search for the truth but not that the judge has committed any error whatsoever in their appraisal of the available evidence.11
- 12 See Laudan 2006 and 2016.
29But this suggests a new way of understanding the TTC. While it may be true that not all “false verdicts” are judicial epistemic errors, one might insist that such verdicts always involve epistemic errors of the system.12 The TTCE would now be:
The thesis of the truth as a condition for the absence of the justice system’s epistemic error
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(TTCEES)
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Although the truth of the factual premise is not a necessary condition for the justification of the court finding or for the exclusion of judicial error, a court finding whose factual premise is false by necessity constitutes an epistemic error of the justice system, which fails to find the truth.
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- 13 If the error were truly judicial, then it would be difficult to continue to assert that the verdict (...)
30Is this version of the thesis correct? It is true that since a “false verdict” (even if it is valid) is reached, it is perfectly possible that there is a genuine error of the system. A procedure organised to decide upon the truth or falsity of factual premises by tossing coins into the air, for example, will yield an enormous number of “false verdicts” that are errors that may be attributed to the person who had the idea of designing such a system and of those who put it into practice. However, this is not necessarily so. Cases of false positives or false negatives caused by mistakes made by operators of the system other than those who reach the findings may also undoubtedly occur.13 These operators may be of several kinds: poor legislative designs; deficient investigations; corruption of certain individuals involved in the investigation, in the court proceedings or as parties thereto; bad reasoning and so on. Once again, the point here is that it is not necessarily so.
- 14 This notion is highly present in works dealing with “epistemic risks”. See, for example, Biddle & K (...)
- 15 Of course, in ordinary language both terms are synonymous and as such both of them are generally us (...)
- 16 Here, we must also avoid falling foul of the mistake of thinking that all “false verdicts” are flaw (...)
31To make my point clearer, and for want of better labels, I would propose a distinction between flaws and mistakes for the purpose of explaining an intuitive difference between different ways of producing errors. I will use the first term, “flaws”, to refer solely to false determinations (false positives or false negatives) for which no agent or method can be blamed14. I will use the word “mistakes” to refer only to blameworthy errors, those which are the outcome of actions or activities which either should not have been executed or should have been executed differently to the way in which they actually were.15 In this regard, unjustified findings, “invalid verdicts”, are undoubtedly mistakes. But not all “false verdicts” are mistakes, and some of them are not even system flaws.16
32I think that the problem here is more related to Laudan’s categorisation of “errors” than to the TTCEES in itself. It should be noted that on the basis of this version of the thesis, together with the error categories offered by Laudan, it follows that any “false verdict” – in other words any “false conviction” and any “false acquittal” – are an epistemic error of the system. But this may lead to confusion. In order to see where the problem lies we need to delve further into the category of “false verdicts”.
- 17 See, particularly Laudan 2016.
33As far as Laudan is concerned, there is a perfect “alethic” symmetry – so to speak – between the false positives and false negatives that he includes in the category of “false verdicts”. By using the term “alethic”, I seek to emphasise that the symmetry referred to is related to the relationship that a “false conviction” and a “false acquittal” have with truth and falsehood. The symmetry or asymmetry between these two kinds of error can be evaluated in other senses. One of them pertains to their severity or undesirability in moral terms. In this variant, Laudan does not regard errors as symmetric. His appraisal, like most people’s, is that “false convictions” are morally more serious or undesirable than “false acquittals”, although from his moral point of view the asymmetry is less – he assumes – than what people tend to think.17
- 18 Actually, I do not deny that reflecting on the (moral) undesirability of acquitting those who commi (...)
34In any event, what is now important is what I have termed “alethic symmetry”. For Laudan, in this sense, “false convictions” and “false acquittals” share and exhaust the type of false verdicts. In other words, in his opinion, both false convictions and false acquittals represent the failure to find the truth. “Potential failures” in finding the truth (i.e. the false acquittals and false convictions that a system may generate and their ratio of occurrence) are tools that Laudan (and many others) uses to reflect upon what the epistemic demands that standards of proof should impose ought to be. In this regard, potential false verdicts serve as a heuristic tool to design, in advance, a system that is adapted to certain axiological aims. There is nothing bad in this, at least in principle.18 But it is a serious mistake to think that “false convictions” and “false acquittals” effectively dictated within the framework of a legal system are necessarily epistemic errors of the justice system.
35There is no doubt that when an innocent person is convicted, as was the case of Dmitri Karamazov, something false is asserted as being true. In such cases, it is right to say that the person making the ruling employs a false premise, at least in the sense that they include this premise in their reasoning. Meaning that any “false conviction” is at least a flaw of the system. And in fact, this ruling could also be a mistake.
- 19 There are cases in which symmetry does appear to work. For example, in cases in which it is regarde (...)
36But it would be a serious error to think that the same occurs in cases in which a guilty person is acquitted. Because these types of acquittals do not involve asserting a falsity. It is simply not true that the person ruling in these cases endorses a false premise, not even in the sense of using such a premise in their reasoning. And this is why it makes no sense to talk about “false acquittals”, at least not indiscriminately, or to treat them as epistemically symmetrical situations to “false convictions”.19 Asserting a falsity is not the same as not having substantiated the truth. And as is well known, the latter is what occurs in many of the acquittals which Laudan labels as “false”.
- 20 For Ferrer Beltrán, asserting that there is sufficient evidence in favour of a factual hypothesis i (...)
37A valid acquittal, even if it is “false”, releases a person from responsibility because the requirements to deem responsibility are not met. Committing a typically unlawful and culpable action is not the only requirement that conditions criminal liability (or legal, or even moral). Moreover, these conditions include several others related to procedural and probatory matters. If any of these conditions are not met, then, to put it simply and clearly, there is no criminal liability, in the sense that there is no admissible justification to attribute the unlawful action to the person being tried. And this is so whether or not the person did or did not perpetrate the deed in question. When such perpetration is not proven, even if it did happen, there is no falsity whatsoever. In fact, according to the “descriptivist” conceptions of sufficiency of evidence of the type defended by Ferrer Beltrán, “false acquittals” resulting from the failure to reach the threshold of evidence not only are not “falsehoods”, they are rather the total assertion of a truth, to wit: that there is not enough evidence to convict.20 In this order of ideas, although “false acquittals” may sometimes constitute epistemic flaws or mistakes, they are not necessarily so.
38This can be clearly seen if, by analogy, one thinks of more general factual hypotheses: let us assume that the proposition extraterrestrial beings exist is true. Allow me to assume that, in accordance with the evidence available nowadays, we cannot deem this proposition proven. Or in other words, we lack sufficient epistemic reasons to accept the existence of extraterrestrial beings as true. Saying that there is insufficient evidence in favour of the existence of extraterrestrial beings not only does not involve asserting something that is false (we are not claiming that extraterrestrial beings do not exist), but neither does it necessarily constitute an epistemic mistake or flaw. The same occurs in all the cases in which a person whose guilt is not sufficiently proven is acquitted, even if this person had indeed committed the offence for which they are being tried. Here, we are not dealing with an error of any kind or with a flaw or mistake; at least not necessarily. What is more, and as we shall see later, it has not even been said to be an injustice.
39Setting the case of the wrongly-named “false acquittals” to one side, even if a justice system with an adequate epistemic design would undoubtedly yield flaws – as occurs in any field of empirical research –, these flaws will not necessarily be mistakes. Meaning that neither would such flaws be reasons to review the design of the system nor the way that decisions are taken. In this regard, not every flaw implies that a system is bad or is badly designed.
- 21 This is because investigation procedures and epistemic justification criteria are fallible (i.e. th (...)
40Imagine an epistemically ideal justice system, however much of a utopia this may seem. A system in which procedural design is as good as it could be in terms of investigation and decision-making methodology geared towards finding out the truth. Imagine that in this system the people who investigate, try and reach findings on offences are as well trained or prepared as possible in matters of evidential reasoning and in which both the appraisal of the evidence and the sufficiency of evidence are developed consistently appealing to the right kind of reasons (i.e., epistemic reasons). Moreover, let us imagine a specific case with an epistemically impeccable investigation, trial and ruling conducted in such a framework. A case in which all the possible relevant evidence has been gathered, the conditions pertaining to the gathering, presentation, admission and presentation of evidence were epistemically ideal, and in which the inferential activity is faultless. In my opinion, in such situations, “false convictions” (but not necessarily “false acquittals”) would continue to be flaws in the most basic sense.21 But they will be neither judicial nor system mistakes. Meaning that, if all this is so, the TTCEES must be rejected. The falsity of the factual premises of convictions of innocent people, while it may always be regarded as a flaw, does not necessarily involve an epistemic mistake by the justice system. Acquittals of the guilty are sometimes not even flaws.
41One of the last redoubts that I find for saving the TTCE requires that it be converted into a political and moral thesis according to which “false verdicts” are by necessity injustices:
The thesis of the truth as a condition for the absence of injustices
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(TTCEPM)
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Although the truth of the factual premise is not a mandatory condition for the justification of the court finding, for the exclusion of the court error or for the proper operation of the justice system, a court finding based on a false factual premise is necessarily an injustice.
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42On occasions, this seemed to be the position taken by Michele Taruffo, who moreover actually addressed the question through recourse to the notion of the application of rules:
- 22 Taruffo 2003: 29-30. The italics are my own. With regard to the ambiguity of “case” and “applicatio (...)
... it is evident that if the rule N identifies the factual condition H as a necessary premise for certain legal purposes, but the individual fact h that corresponds to H does not exist (to the extent that the statement that describes it is false), then the rule N cannot be applied in this case. If, in any case, the judge applies it, this will suffice to be able to say that the finding is unjust.22
43This version of the thesis according to which the truth of the factual premise is a necessary condition for the exclusion of error (TTCE) implies that any “false verdict” is undesirable from the political and moral standpoint. Consequently, all “false convictions” and all “false acquittals” are injustices. However, this is at least misleading.
44As has already been said, “false convictions” are always flaws of the justice system and may also be legal mistakes. Perhaps this is sufficient to consolidate the intuition that convictions of innocent people are always unjust.
45Nevertheless, this is not what happens with what Laudan calls “false acquittals”. We have already seen that such acquittals may not at all be wrong from the epistemic standpoint. Now, here it is important to add that neither are “false acquittals” always necessarily injustices. What is more, they could be true legal, political and moral successes of the justice system. To understand this point clearly, it would suffice to give some thought to some of the reasons why people that are tried in criminal proceedings tend to be acquitted.
- 23 See Gascón Abellán 2004: 122.
- 24 In any event, it should be said that “counter-epistemic rules” are not exclusive to the legal syste (...)
46First of all, procedural law has “counter-epistemic rules” or institutions that are based on reasons of justice.23 These institutions may lead court findings to be taken in suboptimal conditions of evidence (i.e. of available information) as opposed to those that could be taken in an extrajudicial setting. In the judicial setting, there are, as is well known, prohibitions pertaining to the use of specific means of evidence, provisions pertaining to certain facts that are beyond discussion, and there are strict regulations on how certain information may be accessed. Sometimes, if these regulations are not observed, the information acquired is excluded from the proceedings. These are but some examples of the aforementioned institutions. These examples are sufficient to demonstrate why the items of evidence used to take court rulings might not be the same as the items of evidence that one might expect to have in another setting.24
47Moreover, fact-finders must take a decision within specific time constraints. This means that as a rule, court investigations cannot be as profound as those conducted in other areas and nor can they be subsequently corrected. These are not the only reasons that may give rise to “false acquittals”, although they will serve to show that those entrusted with taking legal decisions sometimes find themselves in a poorer epistemic situation than those who are not affected by this type of constraints.
- 25 Sometimes it is even justified by epistemic reasons, although I shall not dwell upon that here.
- 26 I shall return to this point presently.
- 27 Let us assume that we must decide whether Vladimir is guilty or innocent and that the time has come (...)
48The important thing is to emphasise that the presence of “counter-epistemic” factors like the ones mentioned above may be politically or morally justified, and we often assume that they are. This is so, for example, given the need to safeguard certain values such as people’s privacy, physical or mental integrity, etc.25 Therefore, let us think about cases in which “false acquittals” are the outcome of the application of counter-epistemic guarantees whose political and moral justification is not questioned. In these cases, even when the person acquitted is guilty – and it remains to be seen how we can actually know that they are26 –, the decision to acquit must be regarded as totally justified, not only from the legal standpoint, but also in political and moral terms.27
- 28 See Ferrer Beltrán 2007: 120 y ss.
- 29 It should be observed that this is true irrespective of the debate as to whether or not it is possi (...)
49Secondly, the legal determination of factual premises is also conditioned by considerations of justice pertaining the sufficiency of evidence. In this sense, fact-finders have a limited set of items of evidence that they must consider. Following this appraisal, these people must decide whether the evidence available provides sufficient epistemic support to the factual hypothesis or, as is sometimes said, whether the epistemic (or inductive) probability reached with this evidence is sufficient to take the decision in question.28 Broadly speaking, establishing whether a certain degree of epistemic probability is sufficient for the purpose of taking a certain course of action or decision depends on evaluative factors. These factors, just like those that underpin “counter-epistemic rules”, are generally related to evaluations linked to the possible costs of false positives and false negatives in terms of the course of action to be taken (e.g. sending a person to prison, evicting them, removal of custody, etc.). This is what occurs when we are faced with the aim of avoiding, to the greatest extent possible, criminal convictions of innocent people: the underlying evaluation is that in the event of a false positive (i.e. the person did not commit the offence and is convicted), the damage caused to this person will be very serious and highly undesirable in moral terms than a false negative. These kinds of evaluations translate (or are intended to translate) into requirements pertaining to sufficiency of evidence. The hypothesis is that the greater the requirement of epistemic justification, the lower the risk of convicting innocent people will be, although the risk of acquitting guilty people increases.29 In contrast, the lower the evidentiary requirement, the greater the probability of convicting guilty people, although so too is the risk of convicting innocent people greater.
- 30 The problem of the justification status of factual premises of practical reasoning transcends the d (...)
50As can be seen, increasing or relaxing these requirements means, after all, taking a political and moral stance, involving certain axiological objectives. Or to put it more simply, this stance and these aims are related to an evaluation or appraisal that pertains, on the one hand, to whether convicting innocent people is or is not more morally undesirable than acquitting guilty persons and, in such an eventuality, how much more undesirable this type of decision is. These considerations on sufficiency of evidence could lead us to consider that a certain volume of evidence that would be sufficient to believe in the truth of a hypothesis or to assert it in a different context is insufficient for the purpose of taking a certain legal decision, for example, to convict a defendant.30
- 31 The debate on this point continues. See, for example Accatino 2011; Accatino 2019 and 2020; Aguiler (...)
51Deciding when certain evidence must be regarded as sufficient to convict, including the political and moral facet of this decision, is left in the hands of the judiciary or else, as many advocate, has to be entrusted to the legislative power. The decision around the establishment of legislated “standards of proof” attempts to establish, by means of general legal rules, thresholds of sufficiency that tell fact-finders when they have sufficient evidence to convict, eliminating any value judgements they may make in this regard. If this were possible, it would be the legislature which, after taking a political and moral position like the one mentioned, would establish the margin of “distribution of the risk of error” between “false convictions” and “false acquittals”.31
52For many reasons, I believe that relying on the possibility of legislatively establishing objective thresholds of evidence – thereby eliminating value judgements of fact-finders regarding sufficiency of evidence – is no more than wishful thinking. But for the purpose of analysing the possibility of a final version of the TTCE, it would be useful to adopt the factual hypothesis underlying this illusion. Let us therefore assume that not only is it possible to establish objective standards of proof by means of legislated rules, but that moreover this can be done quantifying the degrees of epistemic justification, ranging from 0 to 0.99. Let us imagine that the legislature of this imaginary world determines that the just threshold of evidence for criminal convictions must be set at 0.8 degrees of epistemic justification. And let us assume, in addition, making the most of this fantasy world, that political and moral judgements are all objective and that our legislatures are true “epistemic and moral authorities”. Thus, the threshold of sufficiency of 0.8 degrees is not only epistemically objective, it also represents the objectively just evidentiary requirement for the purpose of a criminal conviction.
53As a result of all this, it transpires that any acquittal that is the outcome of failing to reach the degree of epistemic justification established by the standard will be justified, not only legally, but also epistemically, politically and morally. And this is so both in cases in which the individuals acquitted have not committed the offences with which they were charged and in the cases in which they have.
54In a nutshell: perhaps, to convict a person for the action Φ, and for this to be just, this person must have done Φ and there must be sufficient evidence to prove this. However, in order to acquit the person for Φ, and for this to be just, it will suffice that there is insufficient evidence to prove that the person absolved perpetrated action, even if they did.
55It should be noted that in analysing the question pertaining to “counter-epistemic rules” and that which pertains to standards of sufficiency of evidence, we have been imagining a justice system that is not only epistemically ideal (as was the case in the previous section), but also morally faultless. What matters is showing that, in frameworks like this, however fictitious or utopian they may be, acquitting the “materially guilty” through the application of any of these institutions not only does not infringe any legal requirement of justification of court findings, nor is it an error of the justice system. It is more than this: neither does this type of “false acquittals” herald an injustice. In fact, they are acquittals dictated by political and moral demands, in other words they are full embodiments of what is just.
56Therefore, if it is applied symmetrically to every “false verdict”, the thesis of the truth as a necessary condition for the absence of injustices (TTCPM) must also be rejected.
57With regard to the latest version of the thesis of truth as a necessary condition for the absence of error (TTCE), whether “false verdicts” are or are not injustices depends on taking a political and moral stance, above all with regard to the fundamental rights at stake. To my mind, this is part of the importance of the distinction that I have proposed here between flaws and mistakes. In the so-called “false acquittals”, the question is even more relevant, because the distinction extends to two interconnected perspectives that I find crucial.
58First of all, the distinction makes it possible to address the TTCE from a new perspective.
The thesis of the truth as a condition for the satisfaction of the moral admissible ratio of error
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(TTCRE)
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Although the truth of the factual premise is not a mandatory condition for the justification of the court finding, nor for the exclusion of the court error, nor for the proper operation of the system, a certain ratio of flaws means that the system is malfunctioning.
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59Sometimes, the political and moral judgement that underlies the establishing of a certain threshold of evidence is criticised with the argument that the ratio of false positives and false negatives generated by the system under that threshold is morally inadmissible. Larry Laudan has taken this line on numerous occasions with regard to the United States system. More specifically, Laudan is of the opinion that this system produces a morally inadmissible amount of “false acquittals” because of the threshold beyond a reasonable doubt. The inadmissible nature of the ratio between false acquittals and convictions depends on a series of dubious consequentialist calculations that I cannot go into here.32 However, what must be emphasised now is how Laudan calculates the ratio which, he alleges, the system he criticises yields.
60First and foremost, let us remember that over the last few pages we have been analysing verdicts that are assumed to be valid. A valid acquittal due to lack of evidence or proof correctly states that the epistemic reasons gathered and appraised are insufficient to convict. Asserting that such an acquittal is false implies that it has been established that the finding is reached to the benefit of a person who did commit the offence of which they were acquitted. This is precisely what Laudan does when he refers to the “falsity” of this acquittal. Since, as was said at the outset, in real life we do not enjoy the epistemic privileges of omniscience or those available to us when we operate, for example, as readers of literary novels, this determination can only be reached through evidence, i.e., having recourse to epistemic reasons. Here there are two options.
61The first one is for anyone who asserts that the acquittal is “false” (a) to avail themselves of and invoke different and additional evidence beyond that which was heard in the proceedings and (b) to argue that on the basis of this additional evidence it would have been sufficient to convict the defendant according to the adequate threshold required to attribute criminal responsibility (in our imaginary world, a 0.8 epistemic probability). Here, one would need to reflect upon (in the evaluative, political and moral sense) whether the reasons why this additional evidence was not admitted to the proceedings prevail over the values involved in the conviction of the guilty. If the answer is affirmative, the acquittal in question is not a court error, an error of the justice system or an injustice, at least not necessarily so.
62The second option is more delicate, and with regard to which particular caution must be exercised. It is about the strategy consisting of counting “false acquittals” on the basis of the same set of evidence which proved happened to be insufficient for a conviction in the proceedings. To see how this argument works – and which to my mind is little more than a deception – it may be useful to return to our mental experiment, the imaginary world in which degrees of epistemic justification are quantifiable and political and moral judgements are objective. Let us recall here that the legislature had managed to “discover” that the just threshold of epistemic sufficiency for the purpose of a criminal conviction is 0.8 degrees of epistemic justification. Let us also recall that we are assuming that the acquittal is valid, meaning that if a person P was acquitted for lack of evidence this implies that the degree of probability or epistemic justification reached is below 0.8. However, let us assume that proof of P’s culpability had reached a probability, for example, of 0.7 degrees. Obviously, if someone asserts, on the basis of this same set of evidentiary items and this same appraisal, that the acquittal of P is “false”, they would be (a) applying a lower standard of proof than that which the legislature regarded as just and, precisely for this reason, (b) they would somehow be questioning this political and moral judgement according to which criminal convictions are only admissible if the degree of at least 0.8 of epistemic probability is reached. Subscribing to the political and moral judgement of the legislature according to which guilt can only be substantiated with 0.8 degrees of epistemic probability, while also maintaining that acquittal of P is “false” because there is 0.7 degrees of proof of culpability would be a serious inconsistency or, put simply and plainly, cheating.
63Let us assume that in a given time span of 10 years in a legal system (LS) 1,000 people are acquitted because the evidence does not reach the 0.8 required by the standard. Let us also assume that we manage “to corroborate” that the proof of culpability of 80% of the persons acquitted reached a degree of epistemic probability of 0.7. Laudan’s argumentation strategy applied to our example leads us to assert that 80% of the acquittals made over this 10-year period in the LS are “false” and that that therefore 800 criminals were released due to this system’s disproportionate evidentiary requirements. Laudan concludes, on the basis of pseudo-confirmations like this one, that the ratio between false positives and false negatives is therefore too disproportionate. And on the basis of the above, he deduces that the standard of proof must be lowered. In our example, this would mean abandoning the threshold of 0.8 degrees of epistemic probability.
64It is clear that this conclusion can only be drawn if a threshold of sufficiency lower than that which the legislature regarded as appropriate for the purpose of convicting a person in the LS is applied. This means that the argument is a clear petitio principii: it concludes that the legislative standard of 0.8 is too demanding and that it yields morally inadmissible outcomes because it leads to the acquittal of 80% of guilty defendants. However, this conclusion is only reached if we assume that the appropriate standard for regarding a person as guilty is 0.7 (or, in any event, lower than the present one).
65This trap could be accompanied by another, even less honest, one. This lies in the way that the degree of epistemic probability of the culpability of the individuals acquitted in a given time period is corroborated. In Laudan’s case, his evidence of the degree at which the culpability of the acquitted individuals is proven (0.7 epistemic probability in our mental experiment) is reduced to the opinions of the fact-finders with regard to what the degree of subjective probability of culpability was. In other words, the degree at which these people felt convinced that the people they eventually acquitted were guilty.
66This all serves to show why it is important to make the distinction between mistakes and flaws as types of error. And it makes it possible to show why caution must be exercised with theses that assert that certain systems produce too many errors of a certain kind. Claiming that a system produces an excessive amount of false negatives, or in other words that it acquits too many guilty individuals, involves by necessity a moral judgement. This judgement underlies the counting of the error ratio, because in establishing that a (valid) acquittal is “false”, if there is no additional evidence, either a “counter-epistemic” institute is questioned or a standard of proof lower than that which is used in the legal and criminal domain is applied. Hence, this type of statements must be examined with the utmost caution, distinguishing between the different types of reasons involved, above all in order to avoid a contraband of political ideology under the guise of pseudo-epistemological arguments.
67The following conclusions may be drawn:
68(1) The truth of the statement about facts is not a necessary condition for the legal justification of the court finding. It is not a necessary condition for the internal justification, for the external justification of the factual premise or for the external justification of the normative one and is not a necessary condition for “justification” in an additional sense of the term.
69(2) The truth of the factual premise is not a necessary condition for the legal system to operate correctly (i.e. not wrongly).
70(3) The truth of the factual premise, at least if the misleading idea of “false acquittal” is accepted, is not a necessary condition for the justice of the decision or for the system to operate justly.
71Of course, the temptation to lapse into the fallacy of deriving, from what has been said here, things such as the truth is irrelevant to court proceedings or that the truth is irrelevant for the purpose of justifying a court finding, must be avoided. Such theses do not follow from the above and nor do they really enjoy a great deal of traction.
72All the foregoing rules out the TTC and all its possible variants. However, it also shows how unacceptable the opposing extreme position is: i.e., that which claims that the truth is irrelevant to legal proceedings. Thus, while the truth is not a necessary condition for the justification of court findings, of their justice, or for a legal system to operate properly, the suitability of the epistemic justifications of such findings and an epistemically suitable design of the system are. And this means, nothing more or nothing less, that they must be suitable for finding the truth.
–Acknowledgments.– Work carried out with the support of the PID2020-114765GB-I00 Project, funded by MCIN/ AEI /10.13039/501100011033. For their observations, corrections, and suggestions on a first draft, I thank Edgar Aguilera García, Marianela Delgado Nieves, Jordi Ferrer Beltrán, Sebastián Figueroa Rubio, Alejo Giles, Laura Manrique, Pablo Navarro, Marco Segatti y Pablo Rapetti. I also thank the two anonymous reviewers for their comments. I especially thank Allan Bebbington (translator, from Ideamatic SL) and Edgar Aguilera for their crucial linguistic help with the English version of this paper.