Law's Credibility Problem

Authors

Julia Simon-Kerr, University of Connecticut School of Law

Abstract

Credibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.

Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” This presumption, the applicant argues, means that the Court of Appeals must credit his testimony and reverse the decision below.

Should the applicant win? Clearly, the answer depends on what “credibility” (and its presumption) entails. But the Supreme Court, confronting this question in Garland v. Dai, declined to provide an answer. Instead, it showcased the analytic confusion that surrounds credibility writ large. At oral argument, the Justices canvassed four distinct ideas of credibility. In their unanimous opinion, they offered a “definition” of credibility that managed to replicate, rather than resolve, the ambiguity among the four. Meanwhile, the everyday work of adjudication continues. Every year, thousands of cases are resolved on credibility grounds— many with life-altering consequences—despite the confusion at the heart of the legal concept.

The time has come for our legal system to clarify what it means by “credibility.” While the term can be an umbrella for different ideas, within any given adjudication—like an immigration proceeding—precision about how we are using it is a must. To that end, this Article explores different ideas of credibility, taking the Garland v. Dai argument and opinion as a source of (cautionary) inspiration. It explains why credibility is necessarily distinct from truth, and the malleable nature of the concept. Is credibility a synonym for persuasiveness? Does it refer to the likelihood that someone is telling the truth in this case? To the likelihood that they generally tend to tell the truth? To whether they seem like they’re telling the truth? Ultimately, there is no ideal definition of credibility; it depends on what work the concept is trying to do. What is far from ideal, however, is the current state of affairs, in which credibility means everything and nothing—notwithstanding its role in shaping people’s lives.

First Page

179

Recommended Citation

Julia Simon-Kerr, Law's Credibility Problem, 98 Wash. L. Rev. 179 (2023).
Available at: https://digitalcommons.law.uw.edu/wlr/vol98/iss1/7