In 2007, philosopher Miranda Fricker coined the concept of epistemic injustice. One specific type of injustice she identifies is testimonial injustice, which occurs when someone is unjustly denied the status of “knower” by a “hearer” because of an unduly low credibility judgment stemming from some prejudicial stereotype. Since Fricker’s first discussion, epistemic injustice has become a significant topic in philosophical literature. However, the concept has only recently been analyzed within the context of the legal field. 

This previous scholarship has primarily focused on instances where testimonial injustice may occur within the legal system and the direct harms associated with those instances. These direct harms are important, but this note seeks to expand the scope of how testimonial injustice operates in and influences the legal system. This note will argue that, in addition to the direct and personal harms associated with epistemic injustice, testimonial injustice also results in certain incidental harms that impact defendants and the broader society. Though these harms are incidental in nature, it is important to acknowledge them as they operate to undermine fairness, and therefore the legitimacy, of our legal system.

 First, Part II gives a thorough explanation of Fricker’s initial concept of testimonial injustice, what the associated wrongs are, and the subsequent expanded conceptions of testimonial injustice. Second, Part III.A provides a brief summary of the previous scholarship which discusses where and how testimonial injustice occurs in the law. Third, Part III.B, explains how these instances of testimonial injustice coalesce to cause injustice broadly for defendants in criminal proceedings, even if they were not directly subjected to testimonial injustice themselves, and how this creates a ripple effect that harms society in general. Lastly, Part IV briefly introduces possible solutions or mitigation strategies.

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