Abstract
While many epistemologists stress the importance of testimony, psychologists warn us about its dangers. In the legal domain testimony is usually accepted as evidence, with some restrictions compared to acceptance in everyday contexts. Additional restrictions apply to hearsay, and the traditional ban on hearsay in legal factfinding seems to support a reductionist view of testimony: testimony is valuable insofar as it is based on first-hand knowledge, that is, on perception reported as such, with no inference nor assessment by the declarant. However, contemporary legal systems are more liberal in the admission of hearsay, and this may count as an argument in favor of anti-reductionism.
The paper claims that the practical stakes explain the different attitudes towards testimony and hearsay, and that a dichotomy between reductionism and anti-reductionism is unsatisfying in that we need an account that makes sense both of the social importance of testimony and of our preference for the information sources that are closer to the relevant facts.
There is no opinion, however absurd, which men will not readily embrace as soon as they can be brought to the conviction that it is generally adopted. (Schopenhauer, The Art of Being Right, 30)
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Notes
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For Locke, the grounds of probability are conformity with our own experience and the testimony of others’ experience. “In the Testimony of others, is to be considered, 1. The Number. 2. The Integrity. 3. The Skill of the Witnesses. 4. The Design of the Author, where it is a Testimony out of a Book cited. 5. The Consistency of the Parts, and Circumstances of the Relation. 6. Contrary Testimonies.” (Bk. IV, Ch. XV, § 4; in Locke 1975, p. 656) Notice the adversary insight of considering “contrary testimonies”.
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A way-out is probability updating given multiple independent sources, documents, etc. The probability value of a certain report can be higher once those sources and documents are taken into account. If the report of one historian is confirmed by those of others historians who independently worked on the issue, the report will have in the end a higher probability value. That would explain why history matters to knowledge. But that updating process applies to any testimony and evidentiary item; there is nothing special about history in this respect.
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“Though experience be our only guide in reasoning concerning matters of fact; it must be acknowledged, that this guide is not altogether infallible, but in some cases is apt to lead us into errors.” (Hume 2007, p. 97)
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As an interesting reconstruction of Hume’s reductive argument, see Kusch (2002, p. 31): distinguish first-hand knowledge and testimonial reports; then distinguish these three groups: (a) reports confirmed by first-hand knowledge; (b) reports in conflict with it; (c) reports for which you have no first-hand check; then, given that (a) vastly outnumbers (b), assume that this will hold also for (c).
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Cf. Hume (2007, p. 102ff). It is the passion of surprise and wonder that fosters the belief in miracles, given the “strong propensity of mankind to the extraordinary and the marvellous” (103).
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“The difficulty is, when Testimonies contradict common Experience, and the reports of History and Witnesses clash with the ordinary course of Nature, or with one another; there it is, where Diligence, Attention, and Exactness is required, to form a right Judgment, and to proportion the Assent to the different Evidence and Probability of the thing; which rises and falls, according as those two foundations of Credibility, viz. Common Observation in like cases, and particular Testimonies in that particular instance, favour or contradict it.” (Bk. IV, Ch. XVI, § 9; in Locke 1975, p. 663) On Peirce’s fallibilism see Haack (2014b).
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“If we do not already believe in supernatural agencies, no miracle can prove to us their existence. The miracle itself, considered merely as an extraordinary fact, may be satisfactorily certified by our senses or by testimony; but nothing can ever prove that it is a miracle: there is still another possible hypothesis, that of its being the result of some unknown natural cause: and this possibility cannot be so completely shut out, as to leave no alternative but that of admitting the existence and intervention of a being superior to nature.” (Mill 1973, pp. 625–626)
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“If we disbelieved all facts which had the chances against them beforehand, we should believe hardly anything. We are told that A.B. died yesterday: the moment before we were so told, the chances against his having died on that day may have been ten thousand to one; but since he was certain to die at some time or other, and when he died must necessarily die on some particular day, while the preponderance of chances is very great against every day in particular, experience affords no ground for discrediting any testimony which may be produced to the event’s having taken place on a given day.” (Mill 1973, p. 631; note that the example is again a case of testimony)
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“There are, moreover, many hypotheses in regard to which knowledge already in our possession may, at once, quite justifiably either raise them to the rank of opinions, or even positive beliefs, or cause their immediate rejection.” (CP 6.524)
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That doesn’t mean that the testimonial evidence we have of his miracles is sufficient to prove the divinity of Jesus (CP 6.538). What is interesting about Hume, for Peirce, is that he “defined a miracle as a violation of a law of nature, and that the great bulk of his contemporaries were not sufficiently at home in philosophy to see that he was giving the definition a metaphysical turn that was quite uncalled for.” (CP 6.539) Until the scholastic doctors, “a miracle was nothing more than a great wonder.” (CP 6.540) It was Aquinas who said that “a miracle was an interruption of the order of nature” (CP 6.541) and when Hume took up the subject of miracles he conformed to that definition because he needed to claim that a miracle should be something completely at variance with our experience. Hume also changed the phrase, from “an interruption of the order of nature” to “a violation of a law of nature”, which was at the time a more familiar way to put it (CP 6.541). “If there was any difference, it lay in this, that to the majority of scholastics, the order of nature was something absolutely real, having a being in or behind the very essence of nature; while for the majority of modern thinkers a law of nature is relative to the human understanding.” (CP 6.542) On Peirce’s metaphysics, see Tiercelin (2011, p. 203ff).
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For others it is just a metaphor; see e.g. Austin (1962, p. 11): “our senses are dumb – though Descartes and others speak of the ‘testimony of the senses’, our senses do not tell us anything, true or false.” To make sense of both positions one may distinguish percepts (neither true nor false) and perceptual judgments (true or false); perceiving red is not the same as judging “This is red”, even though the latter builds on the former.
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“The wise and beneficent Author of Nature, who intended that we should be social creatures, and that we should receive the greatest and most important part of our knowledge by the information of others, hath, for these purposes, implanted in our natures two principles that tally with each other.” (Reid 1975, p. 93)
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“There may indeed be temptations to falsehood, which would be too strong for the natural principle of veracity, unaided by principles of honour and virtue but where there is no such temptation, we speak truth by instinct” (Reid 1975, p. 94).
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“Reid argued that the evidence of testimony should be trusted unless there is reason to think it untrustworthy and by analogy, that the evidence of the senses should be trusted unless there is reason to think it untrustworthy.” (Lehrer and Smith 1985, p. 21)
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Hume is right in denying that it is reason that gives us the belief in the continuance of nature’s laws: it is instinct that inclines us to believe so, as it is instinct that makes us rely upon testimony (Reid 1975, p. 100). But in this sense the principle of credulity is a priori. However, nature never lies, men do. “Men sometimes lead us into mistakes, when we perfectly understand their language, by speaking lies. But Nature never misleads us in this way: her language is always true; and it is only by misinterpreting it that we fall into error.” (102)
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In Tuzet (2018) I explored the differences and relations of the singular and general varieties of experience.
- 21.
Consider, for instance, Art. 2721 of the Italian Civil Code and Art. 1359 of the French Civil Code.
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See for instance Rule 611 of the U.S. Federal Rules of Evidence. Cf. Art. 498 of the Italian criminal procedure code.
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I borrow the phrase from Allen (2016, p. 1400).
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See also the safety valve provision (especially in favor of defendants) in the English Criminal Justice Act (2003), where it is said that, among other conditions, hearsay can be admitted “in the interests of justice” (s. 114(1)(d)).
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See in particular Posner’s concurring opinion on the outcome of the case; he claims that it would be good to have a simpler rule making hearsay generally admissible (in line with Federal Rule of Evidence 807) and giving wider discretion to judges. Allen (2016) replies that reform proposals should be checked against the objectives of the field of evidence, the objectives of the Federal Rules of Evidence, and how well the hearsay rule advances, or retards, those objectives.
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By the way, this is an interesting example of a shortcoming of the adversary system unmitigated by judicial intervention. In a Continental system the judge would most likely summon Boyce’s girlfriend.
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Cass. pen. Sez. III, n. 14501/2005.
- 30.
This is how Redmayne (2006, p. 806) put it: “second hand evidence may be excluded in order to encourage the parties to seek out and present first hand evidence (this might provide a justification for the hearsay rule).”
- 31.
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Tuzet, G. (2021). Testimony and Hearsay. In: Klappstein, V., Dybowski, M. (eds) Theory of Legal Evidence - Evidence in Legal Theory. Law and Philosophy Library, vol 138. Springer, Cham. https://doi.org/10.1007/978-3-030-83841-6_10
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