The Vulnerable Subject on Trial: Addressing Testimonial Injustice in the Rules of Evidence.

• Date: 01 January 2019
• Author: Love, Helene

INTRODUCTION

Witnesses play a central role in common law trials. (1) All evidence, even real evidence, which exists independently of any statement of a witness, cannot be considered in a legal dispute at common law unless a witness identifies it and establishes its connection to the matters in dispute. (2) Given the central role that witnesses play, the common law trial is, at its core, a human process. As a human process, the rules that control the admissibility of evidence during a trial can, and should, be organized around the Martha Fineman's vulnerability theory.

Fineman's central thesis is that vulnerability is a "universal, inevitable, enduring aspect of the human condition that must be at the heart of our concept of social and state responsibility." (3) All people are "vulnerable subjects" who are prone to dependency, to various degrees, across the lifespan. (4) While vulnerability is tied to dependency, not age, natural aging introduces physical and cognitive risks to the ability to give accurate testimony in person during a trial that may make older adults increasingly vulnerable along this spectrum. Conditions that are more prevalent with advanced age that increase the vulnerability of older witnesses include the increased risk of dying prior to a trial; changes to the sensory organs and the brain; mobility issues; and strokes and dementia. (5) These risks disproportionately interfere with older witness's ability to accurately share their knowledge in a common law trial setting. (6) By shifting the inquiry to the state's ability to respond to the vulnerability that is uniquely experienced by every human to different degrees, Fineman's theory improves upon traditional discrimination analyses by taking into account social inequality beyond recognized categories such as age, race, or gender. (7)

Incorporating vulnerability theory into the rules of evidence means recognizing that witnesses, the basis for fact finding in a trial, are vulnerable subjects and that their inherent vulnerabilities should not take away from the ability to meaningfully participate in a trial. In common law trials, the rules of evidence control whose stories are allowed to form the basis of fact finding in a legal dispute. These rules are based on the belief that the most reliable evidence comes from the inperson cross examination of a witness during a trial. (8) The problem with this assumption and the rules that are based around it is that it presumes that witnesses are "autonomous, independent, and full functioning adults" who Fineman defines as the "'iberal legal subject'. (9) If a witness cannot attend a trial, or if they perform poorly during this in-court testing of their evidence, their testimony is either excluded or not given due weight. Through these rules of evidence, the trial process is privileging the voices of some, and discounting the voices of others, failing to provide meaningful equality of opportunity and access in terms of being able to participate, and have testimony heard, in a trial.

Participation in a trial involves more than the opportunity to be present in the physical space of the courtroom. Participation necessarily involves the opportunity to be heard and have evidence considered fairly by a judge. To have testimony considered fairly by a judge means that testimony should be accorded its due weight. This idea of having testimony considered fairly maintains judges' discretion to weigh evidence. Testimony that is unreliable because a witness is lying or has a poor memory of events should still not have probative value in a trial because that information does not advance the ability of the trial to uncover what actually happened when reconstructing past events. When unreliable information is lost, the loss does not frustrate the truthseeking function of the trial, rather, keeping out poor sources of information advances it. But when a witness who possesses accurate knowledge of the events in dispute cannot attend court in person or when they perform poorly on cross examination because they are nervous or intimidated by the questioner or the process, the exclusion or discounting of testimony represents the loss of reliable information that could have assisted the judge in coming to a just resolution of a legal dispute.

Discounting the testimony of those individuals who, by reason of their inherent vulnerability, cannot make it to a trial or perform well at cross examination has serious personal and practical consequences. On a personal level, the ability to speak and have that testimony formally recognized is tied to human dignity because the validation of a person's knowledge is fundamental to social connectivity. (10) If vulnerability negatively impacts a person's ability to tell their story in court, or alternatively, results in any kind of credibility discount to individuals who give testimony in a trial then this is characterized as an injury to human dignity known as 'testimonial injustice'. (11)

When testimonial injustice occurs, not only is the individual harmed but so too is the legal system that fails to take on that knowledge. (12) Without the knowledge that the speaker could have shared, common law trials are basing legal outcomes on a distorted version of the facts. The practical consequence is that it introduces the risk that legal disputes are decided without the benefit of the most complete set of facts possible, and that trial outcomes are unjust. Failing to deliver just outcomes adversely affects the operation and perception of fairness of the justice system. (13) As a result, vulnerable subjects who cannot participate in trials may not have the same access to the formalized dispute resolution system that liberal legal subjects do.

In order to ensure that citizens have the equal opportunity to participate in trials, the common law rules of evidence should consider vulnerability as an organizing principle. This argument proceeds in two parts. In Part I, I expand on the problem that common law trials are based on the assumption of the liberal legal subject. As a result, common law trials are failing to provide the equal opportunity to have testimony form the basis of fact finding in a legal dispute to individuals who may experience vulnerability. In Part II, I explore three examples of this issue: the rules governing competence, the rule concerning hearsay (out of court statements, which are generally inadmissible in common law trials), and the testing of evidence through cross-examination. Competency rules include age-based presumptions that perpetuate unhelpful stereotypes about witnesses. Incorporating vulnerability theory into competency rules means a shift away from age-based distinctions in these statutes to instead focus on standards-based assessments of competence. For the rule against hearsay, I suggest that common law courts build flexibility in their determination of when a statement should be admitted. For the requirement of in-person cross examination, I advocate for rules that provide for testimonial accommodations to improve the resiliency of vulnerable witnesses. I conclude that incorporating standards-based approaches and flexibility into the rules of evidence does not diminish the reliability of the fact-finding process of common law trials. Rather, by building resiliency in witnesses, we strengthen the ability of the justice system's ability to accomplish its broader objective of delivering a just result on the basis of reliable evidence.

I: THE ADVERSARIAL TRIAL AND THE LIBERAL LEGAL SUBJECT

In order to respond appropriately to the citizens it is meant to serve, the state is required to provide meaningful equality of opportunity and access to those systems that it has put in place. (14) in common law jurisdictions, the formalized system that has been put in place to resolve legal disputes is the adversarial trial. In this part, I explain how in setting up a system that is centered on the ability to be cross-examined in person during a trial, common law trials are failing to provide equal access to justice through the courts to vulnerable subjects. In the paragraphs that follow, I first describe the historical basis for the common law trial's preference for in person testimony. Then, I make the case for the application of vulnerability theory to the rules of evidence in a trial by outlining the ways the assumptions based on the liberal legal subject are problematic for individuals who fail to meet this standard because of their vulnerability. By discounting the stories of individuals who cannot effectively be cross examined in person, the common law trial may be failing to provide justice to those it is meant to serve.

A The historical basis for the requirement of in-person testimony

In the adversarial trial, the truth is thought to emerge through the competing arguments advanced by skilled legal advocates. The role of the judge is that of impartial arbiter, who is required to stay detached and unemotional throughout the process. (15) All of the evidence in a common law trial is admitted through witnesses, a requirement rooted in the 16th and 17th century trials by jury. (16) At that time, an animating concern was that juries would rely on rumors and other unreliable gossip as a basis for legal responsibility. The requirement that witnesses testify in person was introduced as a way of safeguarding the quality of information upon which juries based their verdicts. (17)

Another justification for the common law trial's requirement for in-person testimony is the partisan nature of adversarial trials and the idea that the most reliable evidence is given by a witness, under oath, tested through cross-examination. (18) During examination in chief, witnesses are guided through their evidence by the party that called them to the stand, so their testimony may omit facts that are significant to the opposing party's position. There may have been gaps or...