Testimony

Abstract

Testimony is one of law's 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 Self-Incrimination Clause turn on whether conduct is testimonial. Surprisingly few connections have been drawn between these constitutional areas and between these areas and law's 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 in-court testimony, hearsay, and the rights to confront witnesses and against self-incrimination. 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 self-incrimination. 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 under-theorized areas in the philosophy of law: the philosophical foundations of juridical proof and the epistemology of law in general.

Keywords: epistemology, evidence law, natural testimony, formal testimony, hearsay, sixth amendment, confrontation, fifth amendment, self-incrimination