Title

Testimony

Document Type

Working Paper

Publication Date

5-16-2007

SSRN Discipline

Legal Scholarship Network; Criminal Law & Procedure eJournals; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals

Abstract

Testimony is one of laws most important practices and sources of knowledge Testimony is also a term of increasingly significant constitutional importance the scope of both the Confrontation Clause and the SelfIncrimination Clause turn on whether conduct is testimonial Surprisingly few connections have been drawn between these constitutional areas and between these areas and laws evidentiary practices in general including formal testimony and hearsay a substitute for formal testimony Contemporaneously with the increased significance of testimony in law there has arisen a rich philosophical literature examining the concept of testimony and how it functions as a source of knowledge Perhaps less surprisingly few connections have been made between this literature and the law This article provides an account of testimony informed by the philosophical literature that illuminates the relationships between testimony and evidence law testimony and the Constitution and between these two categories The discussion makes both practical and theoretical contributions On the practical side it clarifies legal doctrine relating to incourt testimony hearsay and the rights to confront witnesses and against selfincrimination It proposes and argues for a more narrow hearsay rule and for broader definitions of testimony than the Supreme Court has adopted with regard to confrontation and selfincrimination On the theoretical side it unifies several areas of law through a coherent account of the epistemic practice that underlies them More abstractly it contributes to undertheorized areas in the philosophy of law the philosophical foundations of juridical proof and the epistemology of law in general

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