Cultural defense and epistemic injustices in the court: Anthropological expert reports in Mapuche cases

Abstract

The article offers a theoretical framework to better understand how identity prejudices can affect the assessment of expert testimony by the judge, and so not only promote error in the search for truth in the case but also epistemic injustices related to the epistemic and systematic non-recognition of marginalized groups that collectively perpetuate a context of oppression. The article focuses on the expert evidence offered by anthropologists to supply socio-cultural and contextual understanding in criminal cases of the Chilean legal system that involves Mapuche people. The cases presented plausibly suggest that the anthropological expert evidence about marginalized groups is prejudicially embraced and produce epistemic injustices. In particular, these cases plausibly exemplify a kind of content-based epistemic injustice that has not been noticed in the judicial context. To appreciate this, first, the Rationalist tradition which is assumed is introduce as well as the phenomenon of epistemic injustices to understand the sort of epistemic dysfunctions to be considered. Second, the Chilean legal system, from which the cases are taken, is presented as well as the cultural defense that serves as background for those cases. Third, the cases about anthropological evidence about Mapuche people accused of criminal acts are presented to show the plausibility of a kind of content-based epistemic injustice that affects them, and so interfering both with the search for truth and perpetuating the invisibilization of the Mapuche people. Finally, the generalization of the considered phenomenon to other culturally marginalized groups is highlighted.