Pragmatic encroachment and legal proof

Abstract

This paper uses some modest claims about knowledge to identify a significant problem for contemporary American trial procedure. First, suppose that legal proof requires knowledge. In particular, suppose that the defendant in a jury trial is proven guilty only if the jury knows that the defendant is guilty. Second, suppose that knowledge is subject to pragmatic encroachment. In particular, whether the jury knows the defendant is guilty depends on what’s at stake in their decision to convict, including the consequences that the defendant may face if convicted. Then in order to know whether a defendant has been proven guilty, jurors may need to know something about the potential consequences of conviction. But in nearly every American criminal trial, this information is withheld from jurors. In §1, I lay out the philosophical premises of my argument. In §2, I say more about why these premises present a problem for American trial procedure, and I identify social and political structures that exacerbate the problem. I describe the reasoning that has led courts to withhold sentencing information from jurors, and I diagnose the flaw in this reasoning. In §3, I expand my initial argument, strengthening its conclusions and offering alternative sets of premises that still entail them. I argue that the legal ramifications of pragmatic encroachment depend on highly controversial questions in epistemology, questions about the precise nature of practical stakes. In §4, I propose strategies for legal reform.