Julia Ann Simon-Kerr (University of Connecticut – School of Law) has posted “Credibility in an Age of Algorithms” (Rutgers Law Review, Forthcoming) on SSRN. Here is the abstract:
Evidence law has a “credibility” problem. Artificial intelligence creators will soon be marketing tools for assessing credibility in the courtroom. Yet, although credibility is a vital concept in the U.S. legal system, there is deep ambiguity within the law about its function. American jurisprudence assumes that impeachment evidence tells us about a witness’s propensity for truthfulness. Yet this same jurisprudence focuses fact-finders on external qualities that are probative of a witness’s worthiness of belief but not of the risk that they will lie. Without a clear understanding of what credibility in the legal system is or should be, the terms of engagement will be set by the creators of algorithms in accordance with their interests.
This article focuses on the two main paradigms within current credibility jurisprudence as a guide to thinking about how algorithms might be brought to bear on legal credibility. It does this by analogy to two existing algorithmic products. One is the U.S. credit scoring system. The other is China’s experiment with a “social credit” scoring system. These examples reflect the actual and purported function of credibility in the law in ways that are revealing both for current practice and as we contemplate the credibility of the future.