Lackey+ +Norms+of+Criminal+Conviction

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DOI: 10.1111/phis.12199
ORIGINAL ARTICLE
Norms of criminal conviction
Jennifer Lackey
Northwestern University
Abstract
In this paper, I offer three different arguments against
the view that knowledge is the epistemic norm govern-
ing criminal convictions in the Anglo-American system.
The first two show that neither the truth of a juror’s ver-
dict nor the juror’s belief in the defendant’s guilt is nec-
essary for voting to convict in an epistemically permissi-
ble way. Both arguments challenge the necessity dimen-
sion of the knowledge norm. I then show—by draw-
ing on evidence that is admissible through exclusionary
rules—that knowledge is also not sufficient for epistem-
ically proper conviction. A central thesis operative in all
of these arguments is that the sort of ideal epistemology
underwriting the knowledge norm of conviction should
be rejected and replaced with a non-ideal approach. I
then defend an alternative, justificationist norm of crim-
inal conviction that not only avoids the problems afflict-
ing the knowledge account, but also takes seriously the
important role that narratives play in criminal courts.
KEYWORDS
norms of criminal conviction, narrative, knowledge, ideal episte-
mology, justification
A common view in recent work in legal epistemology holds that knowledge is the epistemic
norm governing proper convictions, especially criminal convictions in the common law, or Anglo-
American, system.1 More precisely:
Knowledge Norm of Conviction: Convict a defendant if and only if you know he is guilty.2
According to this norm, knowledge is both necessary and sufficient for epistemically proper
conviction.3 Thus, if a juror knows that a defendant is guilty, he should vote to convict (suffi-
ciency), and a juror should vote to convict only if he knows that a defendant is guilty (necessity).4
Moreover, the kind of propriety that is at issue here is epistemic in nature; the norm captures what
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LACKEY 189
status jurors need to have with respect to the question of the defendant’s guilt in order to be free
from distinctively epistemic criticism when registering a guilty verdict. There may be other sorts
of criticism that are appropriate if one violates this norm, such as moral, legal, and so on. But if this
norm is correct, then when, and only when, jurors have knowledge is it epistemically appropriate
for them to convict.
This norm has some significant benefits. The proof beyond a reasonable doubt standard that
is required for conviction in common law criminal trials is notoriously resistant to definition and
elusive. For instance, the United States Supreme Court says, “[a]ttempts to explain the term ‘rea-
sonable doubt’ do not result in making it any clearer to the minds of the jury.”5 And regarding
this standard, Hock Lai Ho notes, “It is a mystery why a doctrine held in such high esteem should
yet be so elusive” (2008, p. 455). But if proof beyond a reasonable doubt regarding a defendant’s
guilt just is knowledge of his guilt, then all of the work in epistemology on understanding knowl-
edge, especially its so-called elusiveness,6 can help illuminate this critical concept in the law.7 In
addition, this norm can shed light on a number of puzzles about legal proof, particularly why bare
statistical evidence seems inadequate for convictions.8 For instance, the very high probability that
my lottery ticket will lose is insufficient for my knowing that it will; similarly, the very high prob-
ability that this randomly selected person was involved in an attack on a correctional officer in a
prison yard simply because 24 out of 25 of the incarcerated people where he was took part seems
insufficient for a juror to know that he participated in the attack. The knowledge norm of convic-
tion helps explain these parallels between lottery and legal proof cases. Bare statistical evidence is
insufficient for knowledge, and since knowledge is required for proper convictions, jurors cannot
deliver a verdict of guilty when this is the only kind of evidence they have supporting a defendant’s
guilt.9
The knowledge norm of conviction also gains plausibility from the fact that knowledge is com-
monly taken to be the norm governing assertions, practical reasoning, and actions more broadly.
Regarding assertion, for instance, Keith DeRose claims that “. . . one is positioned well-enough to
assert that P iff one knows that P.”10 And with respect to practical rationality, Timothy Williamson
maintains that the “epistemic standard of appropriateness” for practical reasoning can be stated as
follows: “One knows q iff q is an appropriate premise for one’s practical reasoning” (Williamson,
2005, p. 231).11 Similarly, according to John Hawthorne and Jason Stanley, “Where one’s choice is
p-dependent, it is appropriate to treat the proposition that p as a reason for acting iff you know
that p” (Hawthorne and Stanley, 2008, p. 578).12 Since to issue a verdict is an assertion, and to vote
on a verdict is an action, such broader norms would clearly also govern the epistemic propriety of
convictions.13
In this paper, I offer three different arguments against the knowledge norm of conviction. The
first two show that neither the truth of a juror’s verdict nor the juror’s belief in the defendant’s
guilt is necessary for voting to convict in an epistemically permissible way. Both arguments chal-
lenge the necessity dimension of the knowledge norm. I then show—by drawing on evidence that
is admissible through exclusionary rules—that knowledge is also not sufficient for epistemically
proper conviction. A central thesis operative in all of these arguments is that the sort of ideal epis-
temology underwriting the knowledge norm of conviction should be rejected and replaced with
a non-ideal approach. I then defend an alternative, justificationist norm of criminal conviction
that not only avoids the problems afflicting the knowledge account, but also takes seriously the
important role that narratives play in criminal courts.
190 LACKEY
1 TRUTH IS NOT NECESSARY
The first, and perhaps, most obvious problem with the knowledge norm of conviction is that it
seems to incorrectly regard all wrongful convictions as epistemically improper. Truth is a neces-
sary feature of knowledge, and so jurors cannot know that a defendant is guilty if he is in fact not.
This means that no matter how overwhelming the evidence is on behalf of a defendant’s guilt,
and no matter how thin the exculpatory evidence is, jurors should not deliver a verdict of guilty if
the defendant is innocent of the crime in question. For instance:
Innocent Ian: Ian has been framed for a first-degree murder by rival gang members.
They plant the murder weapon in Ian’s vehicle and intimidate multiple witnesses
into identifying Ian as the shooter. Moreover, after getting word to Ian that they’ll
kill Ian’s wife and children if he doesn’t tell the police he’s guilty, Ian confesses to
the murder and provides details of the crime that only the person responsible for the
shooting would know. After presenting all of this powerful evidence at trial, and with
the defense providing no plausible explanation of Ian’s innocence, the jurors find Ian
guilty of the murder.
With Ian’s confession, given without recantation or accusations of coercion, the possession of
the murder weapon, multiple eyewitnesses to say they saw Ian pull the trigger, and corroborat-
ing details that only the responsible person would know, on what epistemic grounds would it be
proper for the jurors to find him not guilty? Indeed, were they to deliver such a verdict, we can
imagine all involved regarding this as a grave miscarriage of justice, one in which someone was
not held responsible despite an overwhelming amount of evidence that he committed a serious
crime. Intuitively, then, the jurors do precisely as they ought to in this case, even from a specifically
epistemic point of view.
Now, such cases are not new to the proponent of the knowledge norm of conviction. Michael
Blome-Tillman, for instance, writes:
A. . . problem to be addressed here concerns wrongful convictions. . . . In some such

cases. . . the defendant is found liable on the basis of very strong but ultimately mis-
leading evidence. In such cases, the court is not at fault. The standards of proof have
been met by strong, if misleading, evidence. Call such cases no-fault wrongful convic-
tions. (Blome-Tillman, 2015, p. 108)
On the basis of no-fault wrongful convictions, such as what we find with Innocent Ian, Blome-
Tillmann concludes that factive standards of legal proof, such as the knowledge norm, should be
rejected since they deliver the wrong result.
Indeed, versions of this objection have been raised to the knowledge norms of assertion and
action more broadly. For instance, if my twin, who is the unfortunate inhabitant of an evil demon
world, acquires on the basis of experiences indistinguishable from my own the same sorts of beliefs
as me, then her beliefs should not be regarded as improper.14 Given this, my twin also should not
be subject to criticism for offering the same assertions and performing the same actions as me,
even if their truth-value varies significantly. According to knowledge norms, however, while I may
be acting exactly as I ought to epistemically, my twin is consistently violating such a norm and is
therefore open to constant criticism. This seems like the wrong result.
LACKEY 191
Proponents of knowledge norms have a standard response here. Consider DeRose’s distinction
between primary and secondary propriety/impropriety:
As happens with other rules, a kind of secondary propriety/impropriety will arise

with respect to [the knowledge norm of assertion]. While those who assert appropri-
ately (with respect to this rule) in a primary sense will be those who actually obey it, a
speaker who broke this rule in a blameless fashion (one who asserted something she
didn’t know, but reasonably thought she did know) would in some secondary sense
be asserting properly. . . . (DeRose, 2002, p. 180).
According to DeRose, then, if an act is governed by a given norm, primary propriety/impropriety

is determined by whether the act actually conforms to the norm, and secondary propri-
ety/impropriety is determined by whether the agent in question reasonably believes that the act
conforms to the norm. This enables proponents of knowledge norms to explain how subjects who
assert or act on, for instance, reasonably believed falsehoods are behaving, in one sense, appro-
priately and, in another sense, inappropriately: such assertions and actions are blameless and are
thus proper in a secondary sense, despite the fact that they violate the norm of assertion and are
thereby improper in a primary sense.
Sarah Moss makes the same move to defend the knowledge norm of conviction. She writes:
There are multiple dimensions along which we can evaluate jurors as they deliber-
ate. There is one sense in which the jury should convict the defendant in [no-fault
wrongful conviction cases]. But there is also a sense in which they shouldn’t convict
the innocent defendant—because there is a sense in which there is clearly something
bad about false convictions, whether or not they result from misleading evidence. . . .
You can have a justified belief that you are following [the knowledge norm of convic-
tion], even when you aren’t actually following [it]. In that case, you are not doing the
objectively right thing. But you may be blameless, and even praiseworthy, for doing
what you believe is the objectively right thing to do. . . . For every primary objective
norm that tells you what you ought to do, there are secondary subjective norms, such
as the instruction to do whatever you believe will result in the satisfaction of the pri-
mary norm. (Moss forthcoming, pp. 28–9)
According to Moss, then, the primary sense of epistemic propriety demands knowledge on the
part of jurors for convictions, but we can nonetheless count those in cases such as Innocent Ian
blameless for doing their best to follow the norm. But notice: there is a difference between describ-
ing what we ought to do and describing how we want the world to be. The jurors are doing exactly
as they ought to do from an epistemic point of view in Innocent Ian. To do otherwise—to deliver
a verdict of not guilty—is to be properly subject to epistemic criticism, as it involves ignoring
overwhelming amounts of evidence on behalf of guilt and delivering an epistemically unsupported
judgment of not guilty. Of course, the rival gang members are subject to moral criticism for fram-
ing Ian in the first place, and we might lament that the jurors aren’t omniscient or infallible and
that the world isn’t a fair and just place. We should not, however, make the wrongness in the
world necessarily result in the jurors failing to do what they ought to do from an epistemic point
of view.15
Nevertheless, no-fault wrongful convictions often result in an impasse between proponents and
opponents of factive norms. So, in what follows, I will focus on two substantively different kinds
192 LACKEY
of cases that haven’t been adequately addressed by the proponent of the knowledge norm of con-
viction with the aim of moving the debate forward.
2 BELIEF IS NOT NECESSARY
To begin, consider the following case:
Racist Raymond: Raymond was raised by racist parents in a very small-minded com-
munity and, for most of his life, he shared the majority of beliefs held by his friends
and family members. After graduating from high school, he started taking classes at
a local community college and soon began recognizing some of the causes, and con-
sequences, of racism. During this time, Raymond was called to serve on the jury of a
case involving a young, affluent white man on trial for raping a Black woman. After
hearing all of the evidence presented by both the prosecution and the defense, Ray-
mond is able to recognize that the evidence clearly supports the conclusion that the
defendant committed the crime of which he is accused.16 In spite of this, however,
he can’t shake the feeling in his gut that the man on trial is innocent of raping the
woman in question, repeatedly calling to mind how the defendant just doesn’t look
like a rapist.17 Upon further reflection, Raymond begins to suspect that such a feeling
is grounded in the racism that he still harbors, and so he concludes that even if he
can’t quite come to outright believe that the defendant is guilty himself, he nonethe-
less has an obligation to follow the evidence, not his gut. Despite the fact that he does
not believe, and hence does not know, that the defendant in question is guilty, Ray-
mond votes to convict, a verdict18 that is unanimously shared by the other jurors.19
This is an example of what is called a selfless assertion.20 There are three central components to
this phenomenon: first, a subject, for purely non-epistemic reasons, does not believe, and hence
does not know, a proposition; second, despite this lack of belief, the subject is aware that the
proposition is very well supported by all of the available evidence; and, third, because of this, the
subject asserts the proposition without believing and, hence, without knowing it.
The combination of these three features has the following result: a juror offers a verdict to con-
vict in the absence of knowledge and is not properly subject to criticism in any relevant epistemic
sense. Indeed, insofar as the reasons for Raymond failing to believe that the defendant is guilty are
entirely non-epistemic, and in fact are the result of racism, that he is able to follow the evidence—
not his racism—in voting on the question of guilt is epistemically praiseworthy. It is precisely what
we want a juror to do from an epistemic point of view. We want jurors to be guided by evidence
and reason, not bias and gut feelings. In cases where evidence and reason cannot change beliefs,
we at least want judgments and verdicts in courtrooms to not be governed by such irrationality.
Despite all of this, the knowledge norm of conviction renders it epistemically improper for
Raymond to vote in favor of the defendant’s guilt; more precisely, such a norm tells Raymond in
no uncertain terms to vote not guilty because he fails to believe, and thus know, that the defendant
committed the rape in question. This allows Raymond’s bias and racism—his inability to believe
that an affluent, young white man could rape a Black woman—to make it the case that from an
epistemic point of view, he should acquit.
Even if you feel the pull of the primary/secondary propriety distinction in the no-fault wrong-
ful conviction cases, the knowledge norm unequivocally delivers the wrong result in selfless
LACKEY 193
assertion cases. Knowledge is thus not necessary for convicting because even though Raymond
doesn’t know that the defendant is guilty, he should vote to convict.
Now, it might be objected that since we are focusing specifically on convictions, belief is not
what is crucial, but judgments or votes or verdicts. Jurors can clearly judge or vote on the ques-
tion of guilt or innocence independently of what they believe—as Raymond does—so what really
matters in this debate is the distinctively epistemic dimension of knowledge, not the psychological
component of belief.
By way of response, I should note two points. Belief is nearly universally regarded as neces-
sary for knowledge, and so a proponent of the knowledge norm who did not require belief would
have presented the norm in terms of being in a position to know rather than in terms of knowl-
edge. Second, proponents of the knowledge norm of conviction explicitly require belief. Moss, for
instance, writes that “A knowledge account of the criminal standard is plausible, since outright
belief in guilt is a viable constraint on conviction” (Moss forthcoming, p. 22).21
A variant on the primary/secondary distinction move is to object to my argument on the
grounds that jurors like Raymond are not being ideal epistemic agents in their beliefs. Just as,
ideally, we would all believe only true things, so, too, would we believe only in accordance with
the evidence. As Moss writes, “jurors are not merely required to return the verdict that is proper
given what they believe, but also required to be reasonable as they form their beliefs. In order to be
reasonable, jurors must form their beliefs in accordance with the evidence” (Moss forthcoming,
p. 10).
This is a puzzling response for at least two reasons. First, there is no argument for why it is nec-
essary for jurors to believe in accordance with the evidence when what really matters is what they
judge or vote. Since beliefs can come apart from votes, the emphasis should be on what jurors do,
not what they believe. Second, and related: of course, ideally, we want people to believe in accor-
dance with the evidence. We also would like to live in a world without racism, racists, sexism,
sexists, murders, rapes, and so on. Indeed, in an ideal world, we wouldn’t be having this con-
versation in the first place since there would be no crime and hence no need for criminal courts
and jurors. But this is not the world we in fact live in, and it is most definitely not the world in
which jurors need to figure out what they epistemically ought to be doing when delivering ver-
dicts. Given that Raymond’s racism in the world we live in prevents him from believing that the
defendant is guilty, what should he do? The clear answer is that he should vote in favor of guilt.
But the knowledge norm delivers the wrong result, and it does not help to switch the topic and
talk about what Raymond should believe.
It is instructive to take a slight detour here through a discussion of what we might call ideal
versus non-ideal epistemology. Ideal theory in ethics and political theory, often paradigmatically
exemplified by the work of John Rawls in A Theory of Justice, is frequently critiqued for all that
it leaves out of the theoretical picture. Indeed, it is not the appeal to ideals themselves that is
regarded as distinctively problematic, since non-ideal theorists will also invoke moral ideals,
but the absence of attention paid to the way the world actually is, especially for those who are
oppressed and marginalized in various ways.
This is a point that is developed extensively by Charles Mills, who characterizes ideal theory
primarily in terms of what is absent or ignored rather than by what is present. He writes:
What distinguishes ideal theory is the reliance on idealization to the exclusion, or

at least marginalization, of the actual. . . . [I]deal theory either tacitly represents the
actual as a simple deviation from the ideal, not worth theorizing in its own right, or
194 LACKEY
claims that starting from the ideal is at least the best way of realizing it. (Mills, 2017,
p. 75)
According to Mills, then, the core feature of ideal theory is not the idealization itself but, rather,
the disregard of varying degrees of the actual world and the people and institutions in it. He goes
on to argue further that ideal theory will use some or all of a list of concepts and assumptions,
including (i) idealized capacities, (ii) silence on oppression, and (iii) ideal social institutions. Let’s
focus briefly on each of these.
With respect to (i), ideal theory often presupposes capacities that are entirely unrealistic for
human agents. This is true of those who are privileged, but especially of “those subordinated
in different ways, who would not have had an equal opportunity for their natural capacities to
develop, and who will in fact be disabled in crucial respects” (Mills, 2017, p. 76). Moreover, when
capacities are idealized in this way, norms and expectations, along with the corresponding disap-
probation, are likely to become skewed. For instance, if a parent idealizes the cognitive capacities
of her 5-year-old child, then she might think it is appropriate to expect him to be able to sit through
math tutoring every day for an hour without interruption. When he begins to fidget after 30 min-
utes and cries on the second day, she might criticize his behavior and regard him as disappointing
or deficient when in fact the problem is her idealization of his capacities. This example focuses
on cognitive capacities, but similar remarks apply in the moral, political, and epistemic domains.
Regarding (ii), Mills says, “Almost by definition, it follows from the focus of ideal theory that
little or nothing will be said about actual historic oppression and its legacy in the present or current
ongoing oppression, though these may be gestured at in a vague or promissory way” (Mills, 2017,
p. 76). This is especially problematic when the issues being explored are normative ones, such as
those involving justice, obligations, blameworthiness, and so on. If, for instance, we are assessing
when to hold agents blameworthy for being bystanders, completely disregarding the vulnerable
positions of members of different oppressed groups would result in holding all of those present
equally responsible for their inaction. But this might be misguided insofar as those in positions
of power have far less to lose when intervening in morally complex situations than those who are
systematically oppressed.
Finally, (iii) focuses on the idealization of social institutions, such as economic structures and
legal systems, which are conceptualized as models functioning “with little or no sense of how
their actual workings may systematically disadvantage women, the poor, and racial minorities”
(Mills, 2017, p. 76). As we saw with the idealization of capacities, this can result in significant dis-
tortions. If, for instance, we’re theorizing about punishment in the context of an idealized view of
the legal system, we might end up with a radically different conclusion about the moral permis-
sibility of the death penalty than if we factor in the racism pervading the criminal legal system.
In particular, since the race of the victim and of the defendant have been shown over and over to
impact whether a defendant is sentenced to death,22 discussing the death penalty in the United
States while ignoring this fact results in a distorted view of its moral permissibility.
Thus, in general, Mills objects to ideal theory because of its disconnection from the actual
world—especially the experiences of the marginalized—, the way this distorts our understand-
ing of phenomena of critical importance, and the overall impact this has on our ability to achieve
the desired results of the very theories in question:
In modeling humans, human capacities, human interactions, human institutions,

and human society on ideal-as-idealized-models, in never exploring how profoundly
different these are from ideal-as-descriptive-models, we are abstracting away from
LACKEY 195
realities that are crucial to our comprehension of the actual workings of injustice in
human interactions and social institutions, and we are thereby guaranteeing that the
ideal-as-idealized-model will never be achieved. (Mills, 2017, p. 77)
According to Mills, non-ideal theory not only avoids these problems, but is also far better suited
to accounting for the perspectives of members of subordinated groups, which is essential to any
normative theory.
What I want to suggest here is that we need to focus on non-ideal epistemology, especially in
the context of criminal law. For instance, we need to ask the question: given that there is systemic
racism at work in the United States criminal legal system, what, from an epistemic point of view,
should jurors do? Of course, one obvious answer is: don’t be racist. But this is just to do ideal
theory, as Mills cautions us against.
Moss, and other proponents of the knowledge norm, are clearly engaging in ideal theory, as
there is a disregard of varying degrees of the actual world and the people and institutions in it.
When we ask, “What should a juror do when he suspects his beliefs are being influenced by
bias?” and the theory responds, “Don’t be influenced by bias,” there is the unhelpful idealization
of capacities and of social institutions and, therewith, there is silence on oppression. Racism has
left a mark on the United States in ways that trickle down to all of the people and institutions in it,
perhaps most especially the criminal legal system, where people of color are targeted at radically
disproportionate rates. Acknowledging and attempting to correct for the systematic oppression
of people of color needs to be woven into the fabric of the norms governing jury behavior. This
means that we need to ask non-ideal questions of precisely the sort generated by Racist Raymond.
Otherwise put, since racism will clearly be influencing the beliefs of jurors, we need to ask: given
that people are in fact racist, what should jurors do with the body of evidence presented to them
in court?23 The proponent of the knowledge norm is committed to saying acquit, and then tries
to justify this by saying, “but, ideally, don’t be racist.” In contrast, the non-ideal theory that I am
advocating here begins with the acknowledgement that, as a matter of fact, racism will be opera-
tive in the United States at the level of individual jurors and the criminal legal system as a whole.
It also recognizes that the actual capacities of human beings are such that we do not have direct
voluntary control over our beliefs, and this is particularly true with respect to biases and preju-
dices.24 Thus, being told, “don’t believe that,” idealizes our cognitive capacities in precisely the
way that Mills identifies as being crucial to the objectionable sort of ideal theory, both by abstract-
ing away from the in-fact racism of the United States and by tacitly relying on an unrealistic form
of doxastic voluntarism.
What I propose, then, is that we ask what, from an epistemic point of view, jurors ought to do
in criminal cases against the background of “realities that are crucial to our comprehension of
the actual workings of injustice in human interactions and social institutions” (Mills, 2017, p. 77).
This means that we need to ask what someone like Raymond ought to do in the actual world,
where racism is a fact of his life and the criminal legal system he is in, where his capacity to
directly control his beliefs is limited, and where his ability to direct his actions—such as his votes
or verdicts—are far more immediately voluntary. And here the answer is obvious: he should follow
the evidence with his verdicts, even when he can’t do so with his beliefs.
196 LACKEY
3 KNOWLEDGE IS NOT SUFFICIENT
In the previous sections, I focused on two different sorts of cases where knowledge is not neces-
sary for epistemically proper convictions. I now want to turn to showing that knowledge is not
sufficient for such convictions.
It is a well-known fact of the common law, or Anglo-American, system that it includes legal
rules that prohibit evidence from being considered in trials even if it is highly relevant to a question
of guilt or innocence. Such exclusionary rules render the evidence in question inadmissible. An
example that is widely discussed is the rule against admitting hearsay evidence. Even if the hearsay
bears crucially on the defendant’s guilt—either negatively or positively—and even if it is true and
highly reliable, the court dictates that it cannot be considered in reaching a verdict.
With this in mind, it is not difficult to imagine a case in which a juror is exposed to true, reliable
hearsay evidence that makes it the case that she clearly knows that a defendant is guilty, despite
the fact that the rules of the court prohibit her from voting on the basis of this evidence. Consider,
for instance, the following:
Exclusionary Ellen: Ellen is a juror in a first-degree murder trial. During the trial, pow-
erful and detailed evidence that the defendant voluntarily confessed to the murder in
question is presented but is then struck from the record by the judge, who determines
that it is hearsay.
We can assume that the hearsay evidence in this case is reliable and robust enough for Ellen to
know that the defendant is guilty. Nevertheless, this is clearly not sufficient for her to vote to
convict him. The rules of the court explicitly exclude this evidence from consideration, and thus
the knowledge norm, which says that she ought to convict, delivers the wrong result.
Now, the obvious response for the proponent of the knowledge norm to make here is to argue
that I am confusing epistemic propriety and legal propriety. Surely I am right that it is legally
impermissible for Ellen to vote to convict on the basis of the reliable hearsay evidence because it
is inadmissible, but this is precisely what she ought to do from an epistemic point of view. After
all, it is true that the defendant committed the murder in question, and Ellen has true and reliable
evidence that this is the case.
I have two points to make to blunt the force of this response. First, the justification for many
exclusionary rules is overtly epistemic in nature, and thus the distinction between legal and epis-
temic propriety is not as clear as this response assumes. For instance, one of the central reasons
for the exclusion of hearsay evidence is that the inability to engage in cross-examination prevents
jurors from accurately assessing the witness’s testimony. “Cross examination. . . present[s] oppor-
tunities to expose the weaknesses of testimony, improving the accuracy of the jury’s assessment”
(Harvard Law Review Association, 1980, p. 1788). Moreover, even if there are one-off cases where
a jury’s accuracy would be improved through reliance on hearsay evidence, there might still be
epistemic reasons at the level of the criminal legal system as a whole for excluding it. Freder-
ick Schauer (2006 and 2008), for instance, defends the inadmissibility of hearsay evidence on the
grounds that accuracy is best served overall by excluding it, even if it is reliable in certain cases.
Given this, there are reasons for thinking that the impropriety at issue in cases such as Exclusion-
ary Ellen is epistemic as well as legal.
Even more importantly, however, we can return to the considerations from the previous section
and note that ignoring the legal rules dictating how jurors in fact need to consider evidence is to
LACKEY 197
idealize the criminal legal system, and the epistemic norms at work in it, in ways that obscure
the actual phenomena at issue. When we tell a juror to convict if and only if he knows that the
defendant is guilty, how does this bear on what the juror should in reality do when faced with
inadmissible hearsay evidence? If jurors are part of an institution in which the epistemic propriety
of testimony is protected through exclusionary rules, then there is epistemic pressure to exclude
the evidence in the formation of one’s own verdicts, even if there is knowledge in this one-off
case. But even if jurors ignore this, they are part of an actual system in which their verdicts will
be overturned if they follow the norms of ideal epistemology rather than the rules of the courts. It
is difficult to see how we are making progress here, from any normative point of view, to promote
such rogue behavior.
This point can be made from a slightly different angle: even if it is helpful to idealize insti-
tutions and the people in them for some epistemological purposes, this is clearly not the case
when discussing criminal convictions in the actual common law legal system we find ourselves
in. Consider the question of admissibility again here. The Federal Rules of Evidence are specifi-
cally in place because we live in a non-ideal world. For instance, given that human beings weigh
character evidence of prior criminal activity too heavily, we have Rule 404, which prohibits the
admission of character evidence to prove that the person acted in accordance with that character
in a particular case.25 Given that human beings tend to discount the credibility of women who
report sexual assaults, we have Rule 413, which permits as an exception the admission of evi-
dence that a defendant committed prior sexual assaults in criminal cases in which a defendant is
accused of a sexual assault.26 In both cases, the rules governing the introduction of evidence in
United States federal trial courts are distinctively epistemic, but also non-ideal. They look at the
way human psychology in fact works and then restrict, or expand, the scope of what can be added
to the body of available evidence so as to increase the likelihood that it will be weighed properly. In
contrast, Moss appeals to a Lewisian framework27 to identify the evidence that jurors may ignore:
“[a]s Lewis would put it, the Rule of Actuality and Rule of Resemblance together constrain the
possibilities that jurors may properly ignore” (Moss forthcoming, p. 12). To provide an account of
the evidence that jurors may ignore, and thus may consider, without any reference to the Federal
Rules of Evidence is problematic in at least two ways. First, such an account ignores rules that are
in place to epistemically counter psychological deficiencies of actual human jurors, and in this
sense is epistemically inadequate. Second, this account fails to build the actual Federal Rules of
Evidence into the epistemic norms governing jurors, and in this sense tells jurors that they ought
to deliver verdicts that are disconnected from the actual world. In this sense, it is theoretically
inadequate.
Moss herself says that she is restricting the Knowledge Norm of Conviction to the “evidence
presented at trial” (forthcoming, p. 2, note 2), so she could respond to my objection here by saying
that evidence that is struck from the record is not part of the evidence presented at trial, and thus
her view delivers the correct result in Exclusionary Ellen—Ellen should vote to acquit. But this
response is problematic for at least two reasons. First, belief is a necessary condition on knowl-
edge, yet the Federal Rules of Evidence clearly do not apply to what jurors ought to believe. To see
this, consider the following:
Exclusionary Eileen: Eileen is a juror in a first-degree murder trial. During the trial,
powerful and detailed evidence that the defendant was out of town during the murder
is presented but is then struck from the record by the judge, who determines that it is
hearsay. Without this exculpatory evidence, the prosecution’s case clears the “beyond
a reasonable doubt” threshold, and so the jurors should deliver a guilty verdict.28
198 LACKEY
We can assume that the hearsay evidence in this case is reliable and robust enough to defeat29
Eileen’s justification for believing that the defendant is guilty. For instance, the witness is highly
credible and reliable, provides detailed testimony that is corroborated, has no motive to be dis-
honest, and so on. In this way, Eileen would be irrational to believe that the defendant is guilty
in the face of this compelling counterevidence. But if Eileen doesn’t justifiably believe that the
defendant is guilty, then neither does she know it. Thus, if the Federal Rules of Evidence do not
constrain what jurors should believe, then they cannot constrain what they know.
Now, Moss might argue that jurors ought to believe in accordance with only the “evidence pre-
sented at trial”—that is to say, their beliefs relevant to the defendant should be grounded in only
the admissible evidence. Recall, however, that the Knowledge Norm of Conviction aims to provide
necessary and sufficient conditions for epistemically proper conviction. In what sense, however,
is it epistemically proper to disregard or ignore compelling counterevidence with respect to one’s
beliefs? Even if there is some sense of propriety in which this is the case, surely it isn’t epistemic.
In addition, how, psychologically, are jurors supposed to bracket compelling evidence—that they
are powerfully aware of—in their beliefs? It is difficult enough to put evidence to one side with
respect to our actions, such as when delivering verdicts. But given the lack, or minimal amount, of
doxastic voluntarism, doing so with our beliefs is virtually impossible. Still further, how are courts
supposed to determine whether jurors are following the Federal Rules of Evidence in their beliefs,
and what should the consequences be for relevant violations? Even if we sort out the epistemology
of all of this, it seems practically unfeasible to expect courts to police the beliefs of jurors.
For these reasons, Moss’s attempt to vindicate the sufficiency of knowledge for epistemically
proper conviction by restricting the Knowledge Norm of Conviction to the “evidence presented at
trial” is unsuccessful.
4 THE JUSTIFICATIONIST NORM OF CRIMINAL CONVICTION
In place of the knowledge norm, I propose the following:
Justificationist Norm of Conviction: Convict a defendant if and only if you (i) justifi-
ably judge that the defendant is guilty on the basis of the admissible evidence and (ii)
justifiably judge that there is no plausible account of innocence consistent with the
admissible evidence.30
In fleshing out the justificationist view defended here, there is an important sense in which
we can understand the courtroom as involving a particular kind of peer disagreement, which is
a topic that has been the focus of much discussion in current epistemology.31 In classic cases of
peer disagreement, two people who are roughly evidential and cognitive equals disagree about
a matter, and the question is: what should they believe in the face of this disagreement? In a
classic courtroom, two conflicting narratives are presented of the same body of evidence, and the
question is: what should the jurors judge in the face of these two competing explanations of the
evidence?32 Since the body of evidence that can be considered in jury deliberation is restricted to
only the admissible evidence presented in court, there is a sense in which all of the relevant parties
are at least evidential equals. That is to say, there is no piece of admissible evidence to which only
one side has access, as the total body of evidence upon which a judgment can be made is equally
available to all in the courtroom. Of course, there may be pieces of evidence not entered into the
court record for one reason or another to which only one party has access. But in the sense relevant
LACKEY 199
to returning a verdict, all of the jurors are evidential equals. Moreover, given that the verdict is
arrived at on the basis of a process of collective deliberation, where all of the relevant arguments
and lines of reasoning are made explicit, the jurors are, in this sense, equal. There may, no doubt,
be cognitive and performance differences: some parties might be more able to comprehend the
testimony being offered than others, some might have better focus and memory, and so on. In the
sense relevant for judging a defendant’s guilt, however, the jurors are cognitive equals by virtue
of having access to the reasoning processes shared by all of the members of the group. Thus, in
assessing the two sides presented by the prosecution and the defense, the jurors might helpfully
be regarded as epistemic peers judging between disagreeing narratives.
In Lackey (2010a and 2010b), I develop a justificationist view of peer disagreement according
to which the epistemic symmetry between two disagreeing peers can only be broken when one
side can plausibly explain why the other side is in error. Where this cannot be done, and there
is no reason to rationally prefer one belief to the other, both sides should revise their beliefs in a
conciliatory way. I want to suggest that a similar dynamic is at play in the courtroom. The prose-
cution and defense offer different interpretations of the same body of evidence and, in this sense,
they disagree. The jurors are all epistemic peers insofar as they have access to the same body of
evidence and have made their reasoning processes explicit, and so they must choose between the
disagreeing narratives. In order to resolve this disagreement, the jurors must have excellent rea-
son not only for believing that the admissible evidence supports guilt, but also for believing that
there isn’t a plausible interpretation indicating the innocence of the defendant. If there were a
plausible story of innocence consistent with the admissible evidence that hadn’t been ruled out,
then there would be reasonable doubt. In this way, there needs to be an explanation of how the
defense is in error. Where this does not happen, a verdict of guilty is not proper.
I now want to connect the justificationist norm with the critical role that narratives and
stories—told by both the prosecution and the defense—play in criminal trials in the common law
system. According to Samuel R. Gross, “By now, it is commonplace that most successful court-
room advocacy is structured as storytelling rather than logical proof” (1998, p. 852). In a similar
spirit, Andrew E. Taslitz writes that “it is the narrative itself that determines a trial’s outcome”
(1996, p. 393). Following this, Aviva Orenstein claims that in the case of jury trials, “jurors try to
piece together a coherent narrative of the events” (1998, p. 677, note 51) and so “story credibility
and structural coherence are better explanations of juror reasoning than logical proof” (1998, p.
677). This is supported by the Court’s opinion in Old Chief v. United States, where it is said that
the government “may fairly seek to place its evidence before the jurors, as much to tell a story
of guiltiness as to support an inference of guilt, to convince the jurors that a guilty verdict would
be morally reasonable as much as to point to the discrete elements of a defendant’s legal fault.”33
Indeed, Lisa Kern Griffin discusses a 2010 habeas case34 in which “the Seventh Circuit went so
far as to suggest that the failure to present a coherent narrative rises to the level of ineffective
assistance of counsel. In the case of a defendant adjudged ‘guilty but mentally ill’ in a murder
trial, Judge Posner wrote that a narrative richer than the ‘bare facts of his bizarre behavior’ was
necessary to effective representation” (Griffin, 2013, p. 296). Even in the presentation of expert
testimony, Orenstein maintains that “[t]he expert does not tell the jury who or what to believe,
rather the expert fills in gaps based on scientific knowledge and clinical experience that allows
the jury to fashion a coherent story” (Orenstein, 1998, p. 712).
These claims are supported by empirical studies of jury behavior.35 Nancy Pennington and Reid
Hastie (1993), for instance, show that juries choose among competing narratives or studies by
focusing on three central features: coverage, coherence, and uniqueness. “Coverage” picks out the
200 LACKEY
extent to which a story explains the evidence presented at trial. “Coherence” refers to consistency,
plausibility, or completeness.
A story is ‘consistent’ to the degree that it does not contain internal contradictions
with other credible evidence or other parts of the story. A story is ‘plausible’ to the
extent that it does not contradict our knowledge about what typically happens in the
world. A story is ‘complete’ when the expected structure ‘has all of its parts,’ according
to the rules of episodic structure. . . . (Taslitz, 1996, p. 438)
Finally, a story is “unique” if there is only one coherent story as defined by these standards.
According to Pennington and Hastie, jurors reason and deliberate through the lens of stories,
and so the more powerful the narrative is in terms of coverage, coherence, and uniqueness, the
more likely jurors are to convict.
What this research shows, then, is that the mechanism by which jurors assess the explanatory
power of the admissible body of evidence presented in court is driven, in large part, by story-
telling.36 As Justice Souter says for the majority in Old Chief, narrative gives “life to the moral
underpinnings of law’s claims” and satisfies “the jurors’ expectations about what proper proof
should be.” Indeed, without narrative evidence, Souter says that “the effect may be like saying,
‘never mind what’s behind the door,’ and jurors may well wonder what they are being kept from
knowing.”37
Unlike the knowledge account, built into the justificationist norm is a clear and central role for
storytelling. In order to issue an epistemically proper conviction, there must be a justified judg-
ment in guilt. When there is disagreement in the narratives presented, jurors need a plausible
explanation of guilt and also of how the story presented by the defense is in error.38 Otherwise
put, jurors need to justifiably judge that there is no plausible account of the admissible evidence
that is consistent with innocence. This necessarily involves jurors relying on features such as cov-
erage, coherence, and uniqueness to assess the competing stories. For instance, if the story of guilt
involves the defendant picking up a witness to drive him to the scene of the crime, and then ask-
ing the witness to wait for him in the car while he commits a murder, this might be so wildly
implausible that it lacks coherence.39 This is a case where the prosecution fails to provide a plau-
sible narrative of guilt, and so condition (i) of the justificationist norm isn’t satisfied. Or suppose
that the defense presents compelling evidence that the fingerprint on the murder weapon can be
explained by the fact that the defendant used the knife in question for cooking. Here, there may
be the beginning of a plausible explanation of innocence that prevents condition (ii) from being
satisfied. In both cases, the explanatory power of the competing narratives plays a critical role in
what the jurors ought to do from an epistemic point of view.
In contrast, mere knowledge of guilt does not require understanding how the pieces of the
admissible evidence fit into a full, coherent, and unique narrative. I might know a proposition
if it is produced by a reliable process, or tracks the truth, or is the result of properly functioning
faculties, and so on.40 Propositional knowledge is, thus, atomistic, in that it can be had in com-
plete isolation from explanatory resources.41 Knowledge does not require the weighing of bodies
of admissible evidence for their explanatory power and the ruling out of plausible competing nar-
ratives. Given that the empirical evidence shows that this is how jurors, in fact, process evidence,
combined with the reasons for thinking that such practices are epistemically proper,42 this is an
advantage that the justificationist norm has over the knowledge view.
In sum, the justificationist norm of criminal conviction necessarily involves an explanation of
the defendant’s guilt, and an explanation—even in its most basic form—involves a narrative or
LACKEY 201
story. In this way, a plausible narrative of guilt becomes a necessary condition on a juror convicting
a defendant. But here is a powerful objection: suppose that a juror has access to an extraordinarily
reliable single piece of evidence, which is sufficient to ground knowledge even though there is no
accompanying narrative of the defendant’s guilt. The most realistic version of this sort of case
in the criminal legal system is where the single piece of evidence in question is the defendant’s
confession. If a juror reliably hears a defendant confess, and comes to know that he is guilty on
this basis, shouldn’t the juror vote to convict? In this way, doesn’t the knowledge norm deliver the
correct result?
No matter how reliable the confession evidence appears, if this is all that the juror possesses,
this seems epistemically insufficient to convict, as there are many explanations of confessions
consistent with innocence that need to be ruled out.43 The defendant could have been threatened,
coerced, confused, misled, and so on, into confessing. And in the absence of the juror having rea-
son to rule these out, a single piece of evidence—no matter how impressive—seems epistemically
insufficient to convict.
However, what if the single piece of evidence is the output of a highly reliable system that
aggregates individual pieces of information that would tell a story were a juror to have access to
them? Suppose, for instance, that a nation has a fully comprehensive system of surveillance of its
citizens such that it acquires massive quantities of data, which is then aggregated and results in
reliable outputs of guilt or innocence with respect to the criminal activity of its citizens.44 On the
basis of this system, a juror comes to know that a defendant is guilty but has no corresponding
explanation or story. Isn’t the knowledge norm correct in holding that the juror ought to convict,
even in the absence of satisfying the explanatory requirement of the justificationist norm?
Although the output of the surveillance system contains the information necessary for a story, if
the juror in question does not have access to it, there is no way to explain the guilt of the defendant
or to rule out his innocence. The surveillance system could, for instance, be generally reliable, but
wrong on this particular occasion; the defendant could have a reliable alibi; the defendant could
be a political dissident who is being targeted by the government. In the absence of any explana-
tion or narrative of the defendant’s guilt, a conviction, even one grounded in a belief that is in fact
an instance of knowledge, begins to bear some unsettling similarities to Josef K.’s experience in
Kafka’s The Trial, where he is arrested and prosecuted but is never told the nature of his crime.
When stripping a person of freedom is at issue, it is crucial that a juror have at least some rudi-
mentary explanation of the defendant’s guilt, and the knowledge norm does not require this.45
Expanding upon the connection with The Trial, note, too, that there are also crucial epistemic
benefits that criminal trials have for the broader public, and these are best captured by the jus-
tificationist norm. At least one of the reasons criminal trials are open to the public is so that the
community members are able to ensure that justice is being served. This is especially important
to the family members and friends connected to the defendant and the victim. One of the central
ways to assess the fairness of the system is by having access to the evidence presented and under-
standing how it supports a verdict of guilt or innocence. If jurors needed to only deliver a one-word
verdict, and no part of the criminal legal system provided an explanation of the judgment, trials in
the United States would begin to bear more than a slight resemblance to the one found in Kafka’s
novel. And one of the reasons The Trial is so powerful is precisely because prosecution and convic-
tion in the absence of an explanation is unacceptable, both epistemically and morally. Given this,
there are epistemic benefits for the community in having an appropriate explanatory grounding
to convictions, and this is precisely what the justificationist norm requires.
In addition, the justificationist norm avoids the objections facing the knowledge account dis-
cussed in the first three sections of this paper. Since justifiably judging is at issue, neither truth nor
202 LACKEY
belief is necessary for a juror’s epistemically proper conviction, and so the sorts of concerns raised
by Innocent Ian and Racist Raymond do not arise. In particular, it is epistemically permissible to
deliver a verdict of guilty when the evidence overwhelmingly supports this, even when the judg-
ment is false and even when a juror cannot bring himself to believe the proposition. In addition,
this norm clearly relativizes the judgments to the admissible evidence, and so it also avoids the
problem found in Exclusionary Ellen where inadmissible evidence is presented at trial that sup-
ports knowledge but not a proper conviction. Even more importantly, however, the justificationist
norm avoids the sort of idealization found in the knowledge norm that is not only unhelpful but
also potentially harmful. When someone is in the grips of bias, as we saw with Racist Raymond,
the knowledge norm telling the juror to be someone altogether different doesn’t help him with
the specific task of issuing an epistemically proper verdict in the case at hand.
It may be asked, however, whether a version of Racist Raymond—let’s call it Racist Raymond2—
might be raised against my own justificationist norm along the following lines: suppose that the
details from the original case are the same, except that Raymond2’s racism is so powerful that
rather than merely being unable to believe that the defendant is guilty, he cannot bring himself to
exclude a preposterous account of innocence consistent with the admissible evidence. He judges
that the preposterous account is plausible, while also recognizing that he would not reach that
judgment were he not racist. Just as the original case of Racist Raymond is one where the juror
should convict despite not satisfying the conditions of the knowledge norm, is this a case where
Raymond2 should convict despite not satisfying the conditions of the justificationist norm?
There is an important difference between these two norms that renders the justificationist norm
resistant to this sort of problem. To see this, notice that justification is taken to be incompatible
with the presence of defeaters, which can be either doxastic or normative, and either rebutting or
undercutting.46 A doxastic defeater is a doubt or belief that you have that indicates that one of
your beliefs is either false (i.e., rebutting) or unreliably formed or sustained (i.e., undercutting). A
normative defeater is similar, except it concerns doubts or beliefs that you should have, given the
evidence available to you. So, for example, if I believe that the animal in my backyard is a bobcat
by seeing one there, I might get powerful evidence that such a belief is false by you telling me that
bobcats have never lived in my state, or that my basis is a poor one by my optometrist reporting
to me how much my vision has deteriorated. If I accept both instances of testimony, then I have
doxastic defeaters, rebutting in the first case, undercutting in the second. But even if I reject the
testimony in question, I am still on the hook for this counterevidence if I do so for no good reason
at all. Why? Because it is evidence that I should have.47 The justification that my bobcat-belief
might have initially enjoyed, then, has been normatively defeated.
When one has a defeater of any kind, the only way in which the target belief can be rationally
retained is if one has a defeater-defeater—that is, a further belief or evidence that defeats the orig-
inal belief or evidence. So, for instance, the rebutting defeater for my bobcat belief might itself
be defeated if I come to learn that a bobcat recently escaped from the local zoo. Or the undercut-
ting defeater might be defeated if I discover that my optometrist consulted the wrong chart when
concluding that my vision is unreliable. It is the presence of undefeated defeaters, not merely
defeaters, that are incompatible with justification.
These tools can help us see why Racist Raymond2 does not present a situation in which a juror
should convict the defendant despite not satisfying the justificationist norm. Recall, first, that
there is powerful evidence of guilt presented at trial in the original case, so this serves as a justi-
ficatory basis of Raymond2’s verdict of guilty. Moreover, while the preposterous account of inno-
cence may be believed by Raymond2 and thus may serve as a doxastic rebutting defeater, he also
recognizes that his racism is operative in this assessment. This second belief provides him with an
LACKEY 203
undercutting defeater-defeater, as identifying that a belief is grounded only in racism undermines

the basis of the original defeater. In other words, since racism is definitionally a poor epistemic
basis for belief, acknowledging that one’s belief results from racism is to recognize that it is unreli-
ably produced. Still further, even if, for some reason, Raymond2’s acknowledgement of the racist
grounding of his view of the defendant’s innocence doesn’t rise to the level of belief, racism clearly
is a highly unreliable basis, and so he has a normative undercutting defeater even if he doesn’t
have a doxastic one—in other words, it is a belief he should have, or it is evidence he should take
into account. Either way, then, Raymond2 is justified in believing that the defendant is guilty on
the basis of the original evidence since the preposterous account of innocence has been defeated
by its racist basis, and thus he satisfies the justificationist norm in question. For that reason, Racist
Raymond2 does not constitute a counterexample to the justificationist norm.
This is not to say, of course, that a juror will always have defeaters for false or even poorly
grounded beliefs. Consider, for instance, the extent to which racism impacts the criminal legal
system, even at the level of interpretation of evidence. A powerful example of this is provided by
Jasmine B. Gonzales Rose in her discussion of evidence that a defendant was seen running from,
or fleeing, the scene of a crime. “The assumption that innocent people do not actively avoid or
outright flee from the police and immigration authorities is based on white beliefs and norms”
(2017, p. 2280). In particular, the fact that “flight evidence” is presented as evidence of guilt fails
to take into account that running from police is far more common in overpoliced communities
of color, regardless of guilt or innocence, and thus should not be interpreted as supporting guilt.
As the Supreme Judicial Court of Massachusetts notes, “[F]light is not necessarily probative of a
suspect’s state of mind or consciousness of guilt. Rather, the finding that black males in Boston
are disproportionately and repeatedly targeted for [field interrogation observation] encounters
suggests a reason for flight totally unrelated to consciousness of guilt. Such an individual, when
approached by the police, might just as easily be motivated by the desire to avoid the recurring
indignity of being racially profiled as by the desire to hide criminal activity.”48 If a juror is aware
that flight is more common in overpoliced communities of color—say, through testimony from
an expert witness—then taking flight evidence as clearly probative of guilt is defeated. However,
there are also plenty of cases where jurors are never made aware of evidence of this sort and so
continue to assess evidence through the lens of white beliefs and norms. On my view, is it possi-
ble that such beliefs are justified? Yes, but this is true of every fallibilist conception of epistemic
justification. Aristotle and Galileo held justified false beliefs based on the best evidence they had
at that time, and so do we today. This is not a strike against the justificationist norm, but a recog-
nition of our own fallibility. Moreover, in the particular case at hand, the beliefs and norms of
non-dominant communities should be included as admissible evidence in trials, as this would
provide jurors with defeaters for flight evidence, among other kinds. In this way, the justification-
ist norm makes room for non-ideal theorizing about the actual practices of judges, prosecutors,
and defense attorneys in the criminal legal system.
5 CONCLUSION
In this paper, I developed and defended a justificationist norm of criminal convictions in the com-
mon law, or Anglo-American, system. In so doing, I raised several problems for the currently
popular knowledge norm and showed that carving out a role for explanatory narratives in the
grounding of convictions is crucial. I also argued that we should turn our attention to non-ideal
epistemology, especially in the context of discussing the criminal legal system. When we idealize
204 LACKEY
to the exclusion of the actual, especially in a system clearly fraught with racism, we ignore the
real problems facing the real people and institutions our theories are supposed to address.49
ENDNOTES
1
Even when not specified, the focus of this paper is exclusively on criminal convictions in the common law, or
Anglo-American, system.
2
This version is found in Moss (forthcoming). For a defense of at least the necessity dimension, see Littlejohn
(2017), where he endorses the knowledge norm that “states that we should not convict a defendant unless we
know them to be guilty.” See also references to those who accept the knowledge norms of assertion and action
discussed in what follows. I should also note that this norm is understood as applying to individual jurors, rather
than to the jury or the State as a collective entity. For some of the many complications that arise in attributing
knowledge to groups, see Lackey (2021).
3
The focus in this paper is on the epistemic norm governing criminal convictions. According to the knowledge
norm, for instance, knowledge is necessary and sufficient for rendering a criminal conviction epistemically
appropriate, but there may be other norms or senses of propriety in which knowledge is neither. Suppose that
a juror knows that a defendant is guilty, but also is aware that the evidence in question was obtained through
brutal torture. In such a case, a verdict of guilt may satisfy the relevant epistemic norm, but not the moral and
legal ones. Epistemic norms are typically picked out by whether their violation warrants distinctively epistemic
objections. For instance, a criticism such as, “you didn’t have adequate reason to convict” or “you didn’t have
a strong enough basis for that verdict” are epistemic, while “you promoted harm or undermined the constitu-
tion” are moral and legal. Moreover, there may be an all-things-considered notion of propriety that determines
how to aggregate, or rank, these different normative directives. While a detailed discussion of this issue lies far
beyond the scope of this paper, we can find guidance from the debates about the epistemic norms governing
assertion and action. See, for instance, DeRose (2002), Fantl and McGrath (2002), Hawthorne (2004), Stanley
(2005), Williamson (2005), Lackey (2007, 2008, and 2011), Hawthorne and Stanley (2008), Benton (2012), and
Goldberg (2015b).
4
The same is true, of course, of judges in bench trials, but I will restrict my focus to jurors for ease of expression.
5
Holland v. United States, 348 U.S. 121, 140 (1954) (quoting Miles v. United States, 103 U.S. 304, 312 (1880)).
6
See, for instance, Lewis (1996).
7
See Moss (forthcoming).
8
For discussion of this puzzle, see Redmayne (2008), Enoch, Spectre, and Fisher (2012), Blome-Tillman (2015),
Littlejohn (2017), and Moss (forthcoming).
9
Again, see Moss (forthcoming).
10
DeRose (2002, p. 180).
11
This is the insensitive invariantist version. The contextualist version is: “A first-person present-tense ascription
of ‘know’ with respect to a proposition is true in a context iff that proposition is an appropriate premise for
practical reasoning in that context” (Williamson, 2005, p. 227).
12
Hawthorne and Stanley restrict their conditions to “p-dependent choices” since p may simply be irrelevant
to a given action. Since the cases discussed in this paper all involve p-dependent choices, I will ignore this
complication in what follows.
13
There are also endorsements of just the necessity or sufficiency dimension of such norms. John Hawthorne,
for example, claims that “. . . we operate with a conception of deliberation according to which, if the question
whether p is practically relevant, it is acceptable to use the premise that p in one’s deliberations if one knows
it. . . .” (Hawthorne, 2004, p. 30). Since it is clear that the kind of acceptability Hawthorne has in mind is epis-
temic in nature, and deliberation about a practically relevant question is another way of talking about practical
reasoning, this passage amounts to an endorsement of the sufficiency claim. Other characterizations of the suffi-
ciency claim are not cast in terms of reasoning at all but focus instead on broader aspects of practical rationality.
According to Jeremy Fantl and Matthew McGrath, “S [knows] that p only if S is rational to act as if p” (Fantl
and McGrath, 2002, p. 78). This is logically equivalent to S’s knowing that p being sufficient for S’s rationally
acting as if p. And while acting as if p may be slightly stronger than using the proposition that p in practical
reasoning, this thesis is certainly in the same spirit as that found in the knowledge norm. Stronger still is the
claim found in the following passage from Stanley (2005): “To say that an action is only based on a belief is
LACKEY 205
to criticize that action for not living up to an expected norm; to say that an action is based on knowledge is to
declare that the action has met the expected norm” (Stanley, 2005, p. 10). Here, Stanley suggests that knowledge
is sufficient not only for being properly epistemically positioned to rely on p in practical reasoning, but also for
being so positioned to act on p. Regarding necessity, Timothy Williamson says that his view of assertion can
be “. . . summarized in the slogan ‘Only knowledge warrants assertion’” (Williamson, 2000, p. 243). And John
Hawthorne writes: “[t]he practice of assertion is constituted by the rule/requirement that one assert something
only if one knows it” (Hawthorne, 2004, p. 23). Other proponents of the necessity dimension of the knowledge
norm of assertion include Unger (1975), Brandom (1983 and 1994), Reynolds (2002), and Adler (2002). Cohen
(2004) says that he is “not unsympathetic” to the view
14
See, for instance, Lackey (2007). This assumes, of course, that the way that I form beliefs in the actual world
results in them being epistemically proper.
15
Littlejohn (2013) offers a response similar, though interestingly different, to Moss’s: “Consider cases where an
innocent person is convicted of a crime they did not commit and that the evidence that exonerates them surfaces
decades after they were sentenced to imprisonment. It seems rather intuitive that something is owed to this
person no matter how carefully the trial was conducted. . . In offering compensation, the American authorities
would take a step toward righting a past wrong. The support for this practice seems to be widespread and if
this is truly a case in which there is a duty of reparation, it shows that the justificatory status of the sentencing
and decades of punishment depends in part upon facts that were obscure at the time of the sentencing and
punishment” (p. 142). Even if we accept everything that Littlejohn says here, it does not support the Knowledge
Norm of Conviction. The State may have a duty of reparation to the wrongfully convicted, but this doesn’t mean
that the individual jurors do, and thus there is no reason to conclude that the jurors violated the norm governing
convictions in delivering a guilty verdict on the basis of misleading evidence.
16
I am assuming that the defendant in question did, in fact, commit the rape of which he is accused.
17
This is not at all uncommon. Coombs (1993) discusses court watchers in the William Kennedy Smith rape trial
who report “I just find it hard to believe that someone with that much money would have to resort to rape to
get what he wants” (Coombs 1993, p. 301, note 96). Similarly, Aviva Orenstein (1998) discusses an episode of The
Geraldo Rivera Show, Funny, He Doesn’t Look Like A Rapist (ABC television broadcast, June 25, 1997), discussing
the Alex Kelly rape trial: “So there’s this nagging suspicion. . . that the woman did something to bring about
her own violation. And that’s especially the case when the perpetrator’s a good looking, popular, wealthy, well-
connected guy. Alex Kelly does not look like a rapist. I’m sorry. He’s walking every day. Amy—Amy Molitor
[Kelly’s girlfriend] is holding on to his hand. His mom’s there. His dad’s there. His family loves him” (Orenstein
1998, p. 674, note 38).
18
In place of a juror believing that a defendant is guilty, I will instead talk about a juror voting or judging in favor
of guilt, or issuing a verdict of guilty. These last three will be used interchangeably.
19
This is a variant of a case in Lackey (2007).
20
See Lackey (2007).
21
While Moss writes this in the context of considering an objection, it is clear that she endorses it.
22
See, for instance, https://files.deathpenaltyinfo.org/legacy/documents/FactSheet.pdf, accessed 25 January 2020.
23
I will develop this point in greater detail in the next section, particularly with respect to the Federal Rules of
Evidence that govern the introduction of evidence at civil and criminal trials in United States federal trial courts.
24
For a classic argument that we do not have direct voluntary control over our beliefs, i.e., that “doxastic volun-
tarism” is false, see Alston (1988).
25
For a discussion of Rule 404, see Orenstein (1998), Laudan and Allen (2011), and Anderson (2012).
26
See, for instance, Orenstein (1998) and Laudan and Allen (2011).
27
See Lewis (1996).
28
I’m offering a different case to illustrate this point since the epistemic problems with ignoring counterevidence
may be more vivid than those with ignoring supportive evidence.
29
I discuss the technical notion of “defeat” in greater detail later in this paper.
30
(Lackey, 2007, 2008, 2010a, 2010b, and 2011) defend different versions of justificationism, broadly construed. In
State v. Jensen, 2011 WI, the “Defendant’s Requested Non-Pattern Jury Instruction No. 14” is very much in the
same spirit as this norm: “I[]f the evidence which you have heard is susceptible of two interpretations, each of
which appears to be reasonable, and only one of which points to the guilt of the defendant, it is your duty to
adopt the interpretation which will admit the defendant’s innocence and reject that which points to his guilt.”
206 LACKEY
Pardo and Allen (2008) develop an “inference to the best explanation” account that bears similarities to the one
defended here: “In criminal cases, rather than inferring the best explanation from the potential ones, fact-finders
infer (and should infer) the defendant’s innocence whenever there is a sufficiently plausible explanation of the
evidence consistent with innocence (and ought to convict when there is no plausible explanation consistent with
innocence, assuming there is a plausible explanation consistent with guilt). When there is a plausible explana-
tion of the evidence consistent with innocence, then there is a concomitant likelihood that this explanation is
correct (the actual explanation) and thus that the defendant is innocent, which in turn creates a reasonable
doubt (and thus should prevent the fact-finder from inferring guilt)” (Pardo and Allen, 2008, pp. 238-9).
31
See, for instance, van Inwagen (1996), Rosen (2001), Kelly (2005), White (2005), Feldman (2006), Christensen
(2007, 2014, and 2016), Elga (2007), Lackey (2007, 2008, 2010a, and 2010b), (Moffett (2007), and Wedgewood
(2007).
32
“Trials themselves. . . [include] elements like the rehearsal of competing narratives that begins with voir dire;
the story telling that takes place in opening statements; the more disciplined narrative of eliciting testimony
on direct examination; and the more “logical” or argumentative approaches of cross-examinations and closing
arguments” (Griffin, 2013, p. 292).
33
Old Chief v. United States, 519 U.S. 172 (1997).
34
Wilson v. Gaetz, 608 F.3d 347, 352 (7th Cir. 2010).
35
“Experimental research has yielded the insight that jurors do not, by and large, estimate probabilities when
determining the events that transpired in a case; rather, they draw conclusions based on whether information
assembles into plausible narrative” (Griffin, 2013, p. 293)
36
The powerful role of narratives has been extended to other parts of the law, as well. For instance, Robert M.
Cover argues that the law itself is derived from the “the sacred narratives of our world” (1985, p. 180). Marianne
Wesson writes that “[e]very lawsuit begins and ends as a story” (2006, p. 343).
37
Old Chief v. United States, 519 U.S. 172 (1997).
38
Pardo and Allen (2008, p. 235) also draw a connection between explanation and the role of narrative or story-
telling in juror reasoning.
39
This is what occurred in the well-known case of Walter McMillian discussed in Bryan Stevenson’s Just Mercy.
40
See, for instance, Goldman (1979), Nozick (1981), and Plantinga (1993), respectively.
41
This is in the same spirit of Griffin’s claim that the Court’s decision in Old Chief v. United States, in which the
storytelling nature of the trial is made explicit, involves “the rejection of an atomistic view of trial” (Griffin 2013,
p. 295).
42
See, for instance, Pardo and Allen (2008): “As in science. . . explanations thus function as a tool for acquiring
true beliefs, and a focus on the role of explanation helps to illuminate the inferential process” (p. 235).
43
See, for instance, Kassin and Kiechel (1996), Leo and Ofshe (1998), Leo (2009), (Kassin et al., 2010), Appleby and
Kassin (2016), and Lackey (2020).
44
The social credit system in China might be the very early stages of such a system: https://www.wired.co.uk/
article/china-social-credit-system-explained, accessed 26 January 2020.
45
What if, instead of a reliable surveillance system, a juror consulted an all-knowing oracle or crystal ball, which
infallibly reports that a defendant is guilty only when he is? Suppose that a juror knows that the defendant is
guilty on the basis of the oracle’s testimony but has no explanation or narrative of his guilt. Doesn’t the knowl-
edge norm deliver the correct result here? The spirit of my response to the surveillance scenario will apply to
this objection; however, to the extent that it does not, this is because the example is so idealized that it will not
be relevant to actual jurors in the United States criminal legal system, which is the topic of this paper. Given
this, I think we can safely set aside all-knowing oracles and crystal balls.
46
For various views of defeaters, approached in a number of different ways, see BonJour (1980 and 1985), Nozick
(1981), Goldman (1986), Pollock (1986), Fricker (1987 and 1994), Chisholm (1989), Burge (1993 and 1997), Plantinga
(1993), McDowell (1994), Audi (1997 and 1998), Bergmann (1997), Williams (1999), BonJour and Sosa (2003),
Hawthorne (2004), Reed (2006), and Lackey (2008).
47
For a very nice development of the notion of “should have known,” see Goldberg (2015a).
48
See Commonwealth v. Warren, 31 N.E.3d 539 (Mass. App. Ct. 2015).
49
I am grateful to Alex Guerrero, Youngjae Lee, Baron Reed, and Aness Webster for extremely helpful feedback
on an earlier version of this paper.
LACKEY 207
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How to cite this article: Lackey, J. (2021). Norms of criminal conviction. Philosophical
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Norms of criminal conviction

188 © 2021 Wiley Periodicals LLC wileyonlinelibrary.com/journal/phis Philosophical Issues. 2021;31:188–209.

1 TRUTH IS NOT NECESSARY

A. . . problem to be addressed here concerns wrongful convictions. . . . In some such

As happens with other rules, a kind of secondary propriety/impropriety will arise

According to DeRose, then, if an act is governed by a given norm, primary propriety/impropriety

2 BELIEF IS NOT NECESSARY

To begin, consider the following case:

What distinguishes ideal theory is the reliance on idealization to the exclusion, or

In modeling humans, human capacities, human interactions, human institutions,

3 KNOWLEDGE IS NOT SUFFICIENT

4 THE JUSTIFICATIONIST NORM OF CRIMINAL CONVICTION

In place of the knowledge norm, I propose the following:

undercutting defeater-defeater, as identifying that a belief is grounded only in racism undermines

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