Agential epistemic injustice in criminal prosecution and the problem with recanted out-of-court confessions

Abstract

Agential epistemic injustice in criminal prosecution occurs when declarations taken in moments of reduced capacity for self-determination receive excessive credibility. Specifically in the context of recanted out-of-court confessions, the article investigates which legal criteria for the rational evaluation of evidence could prevent agential injustices. The method employed was bibliographical research on epistemic injustice, reliability of confessions as criminal evidence, and the Superior Court of Justice’s case law. Analyzing empiric research on false confessions and forensic practices in Brazil, a significant risk for agential injustices can be detected, mainly because out-of-court confessions are largely used to justify criminal convictions. The article concludes with two propositions: (I) to disregard, during the evaluation of evidence, out-of-court confessions not repeated before a judge; and (II) to consider the level of the defendant’s effective epistemic agency when evaluating their confession, with less credibility given to confessions obtained in situations of reduced agency.