An epistemological analysis of the use of reputation as evidence
| Date | 01 July 2021 |
| DOI | 10.1177/13657127211011219 |
| Published date | 01 July 2021 |
| Subject Matter | Articles |
Original Research Article
An epistemological analysis
of the use of reputation
as evidence
Andr´
es P´
aez
Department of Philosophy, Universidad de los Andes, Bogota, Colombia
Abstract
Rules 405(a) and 608(a) of the Federal Rules of Evidence allow the use of testimony about a
witness’s reputation to support or undermine his or her credibility in trial. This paper analyses
the evidential weight of such testimony from the point of view of social epistemology and the
theory of social networks. Together they provide the necessary elements to analyse how
reputation is understood in this case, and to assess the epistemic foundation of a reputational
attribution. The result of the analysis will be that reputational testimony is extremely weak
from an epistemological point of view, and that in many cases there are more reliable sub-
stitutes that achieve a similar purpose. The obvious fix, in my view, is to eliminate the use of
reputation testimony to support or undermine the credibility, honesty, chastity or peace-
fulness of a witness
Keywords
character evidence, legal epistemology, opinion testimony, reputation evidence, social network
theory
Introduction
In many legal cases, the reputation of a person, a social group, an institution, a company or a product is
the central issue at stake. The most common scenario involves libel, slander and product disparagement
claims, which are direct attacks on a person, an institution or a company’s reputation. The false light and
misappropriation torts in the American legal system are another example. The former is the use of false
information to present someone in a ‘false light’that would be highly offensive to any reasonable person;
the latter is the use of a person’s name or likeness for commercial purposes without consent. False
endorsement claims violate a person’s right of publicity—a celebrity’s commercial interest in the
exploitation of his or her name or likeness—and can affect his or her reputation. Similarly, the negative
use of a trademark or of a copyrighted work can affect a brand, a firm or an author’s reputation
(Heymann, 2011: 1342–1343).
Corresponding author:
Colombia.
E-mail: apaez@uniandes.edu.co
The International Journalof
Evidence & Proof
ªThe Author(s) 2021
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DOI: 10.1177/13657127211011219
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2021, Vol. 25(3) 200–216
Andrés Páez, Department of Philosophy, Universidad de los Andes, Carrera 1 No. 18A-12 (G-533), Bogot´
a, DC 111711,
There is, however, an entirely different use of the concept: reputation as evidence. Rule 608(a) of the
Federal Rules of Evidence allows the use of testimony about a witness’s reputation to support or
undermine the credibility of his or her testimony in trial. Rules 404 and 405 allow the introduction of
character evidence in the form of reputational testimony in certain circumstances. In civil trials, it is
generally admissible when character is a substantive issue in the case. Examples include negligent
hiring, negligent entrustment and child custody cases. In criminal trials, character evidence is admissible
if offered by a defendant as circumstantial evidence or if the defendant attacks the reputation of the
victim. Once the defendant has ‘opened the door’to character evidence, the prosecution can also
introduce reputational testimony to rebut the defendant.
Given the importance of the concept, both in defamation and evidence law, one would expect to find a
well-developed theoretical understanding of reputation in the legal literature. Unfortunately, the oppo-
site is the case. Judges and legal scholars alike have noted the lack of analysis of the concept (Rolph,
2008: 2), and the courts have not attempted to define it:
Rather, in deciding if particular statements are defamatory, they have inquired whether such statements
would be likely to elicit certain specific responses from those to whom the statements were published; a
statement is held defamatory if it tends to expose the plaintiff to ‘contempt, aversion, disgrace, or induce an
evil opinion of him or deprive him of friendly intercourse in society’(Harvard Law Review, 1956: 877,
citations omitted).
The absence of a definition of reputation in the legal literature is somewhat less worrisome in the
context of the law of defamation than it is in the use of reputation as evidence. In the former, the fact
finder’s main concern is whether the libellous statement would in general have a negative effect on a
person’s normal social and business interactions. In most common law countries, the plaintiff does not
have to offer evidence of a prior good reputation or evidence to prove specific damage to it.
1
No precise
understanding of what has been impaired is required; only a general understanding of the effects of
particular negative claims on any person’s standing in the estimation of other members of society. The
situation is very different when reputation is used as evidence. If, for example, a person’s reputation for
truthfulness is admitted in trial because of its probative value in supporting his or her credibility, it is
necessary to understand how the probative relation works. What methods can be used to establish the
probative fact? How reliable are those methods? What is the real probative value of a person’s reputation
as a predictor of conduct on a specific occasion? All of these are epistemological questions that require a
more thorough understanding of what reputation is, and an assessment of the epistemic foundation of a
reputational attribution.
The purpose of this paper is to present an analysis of reputation from the point of view of social
epistemology and the theory of social networks, and to examine the consequences of this analysis for the
use of reputation as evidence in the American legal system. To anticipate, my conclusion will be that
there is no epistemological justification for the use of reputation testimony under rules 405(a), 608(a),
and similar provisions. In many cases, however, there are reliable substitutes that provide reputational
information that has a clear probative value. Although the paper focuses mostly on the negative task of
bringing out the epistemological weaknesses of reputation testimony, I present in some detail several
sources of reputational evidence that are not subject to the epistemological problems discussed here.
The plan for the paper is as follows. In the next section I offer a general analytical framework within
which the concept of reputation will be discussed. An important element within that framework is the
structure of the social group within which a reputation exists. A witness’s location within the network
1. This was also the case in the United States prior to New York Times Co. vSullivan (1964) and Gertz vRobert Welch, Inc. (1974).
Under state law, all libels and some slanders were actionable per se and the existence of actual damage to reputation was
presumed. Dun & Bradstreet Inc. vGreenmoss Builders, Inc. (1984) restored presumed damages in cases in which matters of
public concern are not being discussed (Ehrhardt, 1986: 866–867).
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P´
aez
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