Prove it: A course correction regarding evidence in light of Kavanaugh

There's no point for me to add my voice to that of the thousands of writers who are discussing the Brett Kavanaugh sexual assault allegations. I can’t say anything that isn’t already being said. Besides, the matter keeps evolving as more information comes to light, so anything I write will be obsolete as soon as I write it.

I’m interested in evidence and the law of evidence, however, so I thought it would be helpful to correct some common misconceptions that I’ve heard about evidence that have cropped up as people discuss these allegations.

Criminal acts are not criminal charges

First things first: The source of the misconceptions

People are confused in part because the allegations, if true, describe a criminal act.

Kavanaugh won’t be charged with a crime, however. While it’s tempting to apply standards of evidence related to criminal prosecution here, it’s technically incorrect.

Presumption of innocence

If you think he did it, I guess you don’t believe in ‘innocent until proven guilty’!

In a criminal prosecution (and this is not that), the accused is presumed to be innocent until proven guilty under a particular standard of evidence (beyond a reasonable doubt, for example) to the trier of fact.

This principle is an ancient one, and it’s one of the most important tenets of our criminal justice system: that the government cannot imprison a person unless they have proven every element of a criminal charge. It’s vital in a free society, because it prevents, among other things, political leaders from imprisoning critics of their regimes.

It’s also an admirable value for us to have in general. We should doubt the bad things we hear about people unless we’ve got good reason to believe otherwise. In particular, we should afford Kavanaugh the benefit of the doubt (although I suppose we’re not required to).

Still, being quick to judge is different than taking a serious allegation seriously. We can and should do both. We should take all such allegations seriously (no matter which political party will be hurt by it) and then investigate to see if we believe the allegations. If we believe them, we’ve got a decision to make: If we find the allegation credible, does it disqualify the person?

In this case, the Senate Judiciary Committee has asked Kavanaugh’s accuser Christine Blasey Ford to testify. After hearing her testimony and asking questions and considering all of their other findings, they will decide whether to send Kavanaugh’s nomination to the full Senate for a vote on whether he should be confirmed.

If they find Ford credible, they’ve got a grave decision to make. That is, if they believe that Kavanaugh committed attempted rape when he was 17 and has now apparently lied under oath to them about it recently, they must decide whether to send his nomination forward, allowing the full Senate to vote to confirm or not by a simple majority. As they vote, the Senators will be considering the same thing: If true, does this disqualify him from serving?

Many of the Senators have already made statements that they presume him to be innocent. Others have stated, incredibly, that even if her allegations are true, they don’t consider it to be disqualifying. We can infer from these statements that they will be fair to Kavanaugh, perhaps more than fair.

While various pundits and members of the public have alternately said that Kavanaugh is clearly innocent of wrongdoing or that Ford is clearly mistaken or lying, it appears that the people who will make this decision (the Senate) are committed to a presumption of innocence to say the least.

Due Process

Kavanaugh’s life is being destroyed with no Due Process!

Due process is another bedrock principle of our republic, and it doesn’t just apply to criminal cases.

The Fifth Amendment (and the 14^th Amendment, as applied to the states), guarantees that “no man… shall be deprived of life, liberty, or property without due process of law.” U.S. Const. am. 5 and 14.

This means that, if the government seeks to take away your life (death penalty), your freedom (imprison you), or take your property (condemn your property, for example), you must be given Due Process.

What “process” is actually “due” depends on the nature of the action.

A death penalty case obviously affords the accused the highest form of process, as does a prison sentence.

Procedural due process is a lesser form but still requires the government to provide notice to the person and the right to a hearing. This form of due process is used when the government seeks to terminate a person’s welfare benefits, for example.

Here, you can see that Kavanaugh is not being deprived of his life, liberty, or property. He hasn’t got a property interest in the Supreme Court seat, and of course won’t be executed or imprisoned if he isn’t nominated, so the government is therefore not depriving him of life, liberty, or property no matter what happens. Therefore, Due Process is not triggered here.

Still, the nomination process for the Supreme Court is prescribed by the Constitution and will be followed. That’s not a Due Process thing, but we can be confident that Kavanaugh won’t be deprived of anything under color of the Constitution.

This is serious, though, so we can’t dismiss this concern out of hand.

I think people are objecting to the idea that a person can accuse someone of a terrible act, and the mere accusation can ruin the accused’s life. The prime example of this is an accusation of sexual assault. It’s the most damaging thing of which one can be accused, and a false allegation is therefore monstrous. We should be concerned about that and should make every effort to guard against injustice for all people in all its forms. As we hope to validate the purported victim, we should be equally if not more concerned with protecting the purported perpetrator.

The allegation has been made, however, and the Senate has got no other reasonable choice than to consider it. If you think about it, what else can they do? A reasonable person wouldn’t have them ignore it.

Burden of proof vs. standard of evidence

He should have to take a lie detector test to prove his innocence!

She can’t prove it beyond a reasonable doubt!

We’ve already established that this is not a criminal trial (or a civil or administrative action, even), so these two concepts don’t apply. Still, they are confused and misstated so often that it’s helpful to discuss them.

“Burden of proof” means that the party who brings the accusation must prove it (rather than accusing someone of something and then requiring that he prove his innocence).

This is often confused with the term “standard of evidence,” which is the level of proof required to convince the trier of fact that a proposition is true. (It’s often called a “burden of persuasion” or a “standard of proof,” so you can see why it’s confused with “burden of proof.”)

The standards of evidence commonly used are:

1) Beyond a reasonable doubt--A reasonable person would find it to be true not beyond any doubt but to the extent that there is no other reasonable possibility, perhaps to a 95 percent level of confidence (criminal cases)

2) Clear and convincing evidence—There is a high probability of truth but not an absolute certainty, perhaps to a 75 percent level of confidence (sometimes used in civil cases, particularly those that affect civil liberties)

3) To a preponderance of the evidence—More likely than not, perhaps to a more than 50% level of confidence (often used in some civil cases and some administrative actions)

One of my colleagues noted that he uses the “preponderance of evidence” standard he uses (informally) in situations when he’s trying to decide whether he should vote for a politician despite an allegation of wrongdoing. Does he find it more likely than not, for example, that Trump or (Bill) Clinton is a serial harasser/assaulter? In both cases, he does, and decided not to vote for them because he found the allegations credible and also disqualifying. He suggested that this same standard would be the right one for the members of the committee to use here.

Testimony is evidence

It’s he said/she said. There is no evidence, only testimony.

Testimony IS a type of evidence, and it’s often the bulk of the evidence we’ve got. It can be unreliable, but we often value it as highly reliable.

“Testimony” is a sworn statement made under oath, so statements that a victim makes about her recollections of the incident aren’t testimony or evidence unless they’re made under oath. It’s therefore inaccurate to call the statements that Ford has made or Kavanaugh’s statement denying them “testimony.”

If you doubt that testimony is evidence or that it can be reliable, consider the case of a healthy, sober 30-year-old man who is mugged on a clear, sunny street where there are no security cameras. He reports the incident to the police, a suspect is arrested, and the case goes to trial. On the stand, the victim describes the crime and the perpetrator in detail and identifies him in court. He is consistent and certain, and his story survives cross-examination intact. This testimony will be the only significant evidence in this criminal case, and the jury will no doubt find it reliable when they convict.

What people mean, however, is that in matters such as this where there is no surviving evidence that might corroborate the allegations or denials, how can we be sure which person’s story is true?

We can’t, really. As with all testimony, we rely on bringing the person under oath and then allowing him or her to testify. We then ask questions, hopefully pointed questions. We then weigh the testimony (and the demeanor of the declarant) and decide whether we find it to be credible.

In this case, we’ve got a strong allegation and an equally strong denial, so we decide in the same way we always decide: We weigh the evidence we’ve got (however scant) and ask ourselves whether we believe it.

Sometimes, this method is sound, and sometimes it isn’t. It’s all we can do, however.

Testimony is not circumstantial evidence

One person’s memory is circumstantial evidence, and you can’t trust it!

Testimony is not circumstantial evidence. It is usually direct evidence. In popular culture “circumstantial evidence” has become a synonym for “unreliable evidence.”

This is a grievous misconception. Sometimes, direct evidence is wholly unreliable, while circumstantial evidence can be quite reliable.

You may be surprised to learn the difference.

Circumstantial evidence is evidence that requires an inference to connect it to a fact. For example, DNA evidence, fingerprints, fibers, hair, etc., are circumstantial.

In other words, just because a Defendant’s fingerprints were found at the scene of a robbery, this doesn’t mean that he is guilty of the robbery. Perhaps he was at the scene at a different time for a different reason. The evidence (fingerprints) requires an inference (they were found at the scene; therefore, the Defendant must have left them as he was committing the robbery).

Direct evidence, then, supports the fact without need of an inference. The eyewitness testimony (“I saw the Defendant robbing the store!”) of a drunk, blind, witness who has a history of lying is direct evidence.

In this case, the circumstantial evidence is far more reliable than the direct evidence.

Confirmation bias

When someone we support is accused of something, we tend to view the accusations with a skepticism that would torment Sextus Empiricus. When a representative of the other “side” is accused of the same thing, suddenly the accusation is wholly reliable and people are degenerates for doubting it.

This is confirmation bias at work. We like to think that we carefully view the facts and then base our beliefs on those carefully-considered facts. The opposite is true. We form our beliefs, and then go hunting for validation. We cherry-pick the facts, giving great weight to those that support our belief while dismissing those that don’t.

We’re seeing that here. Folks who cheerfully call Bill Clinton a rapist assert that Kavanaugh cannot be, while those who believe this about Kavanaugh defend Clinton.

We should apply the same standards to everyone. That means we should take allegations seriously, investigate them as best we can, and then decide what to do about them, making consistent decisions each time.