Contextualist Answers to Skepticism, and What a Lawyer Cannot Know

Abstract

"How can you defend those people?" is a question that criminal defense lawyers are expected to answer. Defend what people? Those the lawyer knows to be guilty. The common assumption is that lawyers help clients whom they know to be guilty to escape punishment, and that they bear a personal burden of justifying what they do. But this mistakenly assumes that the lawyer can know that her client is factually guilty. The mistake is revealed by an examination of contextualist theories of knowledge. Inquirers attain knowledge by excluding relevant alternative possibilities, but the range of relevant alternative possibilities is determined partly by the inquirer's role. Epistemologists, for example, must consider a much wider range of possibilities than laypeople; and the best answer to the philosophical skeptic is to point out the role of role in ascriptions of knowledge. In everyday life, we may safely ignore the wild possibilities that epistemologists cannot ignore. But the courtroom is not everyday life; its "beyond a reasonable doubt" standard is an extraordinarily exacting one. Criminal defense lawyers are subject to an even more exacting epistemic standard; one which disables them from knowing their clients' factual guilt. The adversary system that creates these "super-high" epistemic standards must be justified, but no more (or less) by lawyers than by anyone else. Lawyers need not defend the adversary system under the pressure of redeeming their prima facie wrongdoing. American criminal justice represents a massive prisoner's dilemma, in which harsh penalties and baroque procedural protections (including zealous advocacy) are mutually reinforcing. Freeing criminal defense lawyers from the pressure of justifying themselves (as opposed to the system in which they work) could open possibilities of dialogue and reform.