False Confessions and Subverted Agency

In the criminal legal system, confessions have long been considered the ‘gold standard’ in evidence. An immediate problem arises for this gold standard, however, when the prevalence of false confessions is taken into account. In this paper, I take a close look at false confessions in connection with the phenomenon of testimonial injustice. I show that false confessions provide a unique and compelling challenge to the current conceptual tools used to understand this epistemic wrong. In particular, I argue that we cannot make sense of the unjust ways in which false confessions function in our criminal legal system by focusing exclusively on speakers getting less credibility than they deserve. I conclude that the way we conceive of testimonial injustice requires a significant expansion to include what I call agential testimonial injustice – where an unwarranted credibility excess is afforded to speakers when their epistemic agency has been denied or subverted in the obtaining of their testimony.