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.

A better man: How to avoid danger and have a wonderful life with honest people

This is condensed from ideas I shared in a roundtable discussion with other lawyers. Two important notes: 1) All of this information comes from my private practice and not with my work for the state, and 2) I changed minor details to protect the identities of some of the parties.

A recent newspaper article tells this familiar tale: A Texas woman met a man online and formed a romantic entanglement with him. She allowed him to move into her home and gave him access to her money, only to discover too late that he was in concurrent relationships with several other women in different states and was bleeding them dry, too. Now, her life savings is gone and so is the man.

Before we judge, we should note that the women in these stories are usually smart, professional women. They are not gullible in other matters. Still, these women were fooled. Why? Mainly: The men are masters of deception. They spot vulnerabilities and capitalize on them. It’s simply what they do, just as a shark swims and feeds on prey.

There’s something else at work here, too. I am often surprised that most people are unaware of some free or low-cost methods for checking someone’s background using matters that are public record and are therefore available to everyone who knows where to look.

This is a sad story, but it’s not a new story. Perhaps the most disturbing aspect of the story is the women’s typical refrain: “I had no way to know that he wasn’t who he said he was.” The reporters often repeat this: “How could they have known?”

This always surprises me when I hear this, because it occurs to me that most people truly do not know how to spot inconsistencies and verify information.

Because I have done thousands of background checks over the years and because it happens to be something for which I’ve got a knack, I have developed several resources that I have found trustworthy. Any of these strategies would have saved the women in this story.

To avoid confusion and because the article that we were discussing has this particular set of facts, I will use masculine pronouns for the perpetrator and feminine pronouns for the victim and I will assume a romantic relationship. This doesn’t universally hold true, of course: Women do this to men, too, and it happens in same-sex relationships, friendships, and even professional relationships.

It’s critical to point this out: Do not break the law by attempting to get information through sources that are not public record. Do not misrepresent yourself or otherwise use dishonest methods to gain access to confidential information. Also, remember that healthy relationships are built on trust and honesty. Do not “investigate” someone who is making a good-faith effort to be upfront with you. Many people become world-class detectives when they are dating someone. Snooping can be morally wrong, and it’s a breach of trust. If you cannot ask questions and be satisfied with the answers, the problem may lie with you, and you should not be dating until you have resolved it.

Again, these tips are meant only to protect someone who has serious questions about another person’s integrity and may therefore be in danger. In short, it’s the remedy for “I had no way of knowing.”

1. Gut feelings: You’ve got doubts, and that fact alone is a red flag. It means that something about this person doesn’t add up, and yet you may be unable to articulate exactly what it is yet. Still, you know something is wrong, so don’t ignore that feeling.

It also means that you don’t feel that you can ask certain questions or that you’re not getting straight answers when you do ask them. This alone is reason enough to put the brakes on.

All of these stories include a lot of “I thought it was odd when…” and “I wondered why he….”

2. Family relationships: Have you met his family? If he hasn’t got a somewhat stable relationship with his mother, father, siblings, and children, this is a bad sign unless there is a reasonable explanation for ONE of these broken relationships.

For example, he may have a tense relationship with his father, because his father is an alcoholic and abandoned the family at some point, but he acknowledges this and still has a close relationship with the rest of the family. That’s normal family dysfunction.

Certainly, if he says that his family refuses to speak to him or that they’re afraid of him, this signifies danger.

3. Current work: Has he got a real job? Is it something he can describe to you in more than just vague terms?

This is one of the biggest lies that con artists tell: “I’m retired military, and I’m doing contract work overseas.” This is true because it sounds dashing and inspires sympathy, but it also provides a handy excuse for not giving you details (national security!) and for being gone for weeks at a time.

I have worked with a lot of retired military men who are doing contract work overseas, and all of them can tell you where they’re working (in general), for whom, and what they’re doing (again, in general terms). Even if it’s a matter of national security, he can give you the name of the company and tell you what he’s doing without revealing confidential information: training troops or working security, say.

There are few legitimate reasons for a person’s job to be a mystery.

Beware also: The “entrepreneur.” Real entrepreneurs can tell you what they sell or what service they provide, and they ought to be out there selling it or providing it much of the time. Self-employment should still look like employment.

4. Military service: Speaking of military service, if the guy is not close friends with the men with whom he served, he is either lying about his military service entirely, or something is very wrong with him. Military men are always lifelong close friends with the men with whom they served. Always. If his military service sounds too heroic to be true, ask other men you know who served in the military and get their take on it. Military men can spot a phony story from a mile away.

Obviously, the military and the Veterans Administration will not release any information to you. It’s a violation of the soldier’s privacy, both legally and ethically, so do not attempt this.

5. Professional licensure: Speaking of jobs, check his professional licensure. If he is a doctor, lawyer, accountant, or a member of one of many other professions, he is required to be licensed by the state in which he practices. This is the number one place I look after I look at criminal records, and this has proven incredibly fruitful. No one ever thinks to look here, but it is in fact one place you should always look—and it’s free.

You can either go to the state’s website and navigate to the secretary of state’s page and go from there OR simply Google his profession, the state, and “licensure” or “license lookup.” Make sure you go to the official .gov page. Every state’s board of licensure for each profession has a license verification feature for the public’s use.

You will find out whether he is licensed to practice and whether he has been disciplined and why.

Also, if he was a member of a profession but claims that he decided to stop practicing, take heed. People change careers for legitimate reasons (Example: After 20 years, he’s decided to stop practicing as a Certified Public Accountant in order to teach accounting at a college.) Still, this is a little unusual given the time and effort that it takes to become a certified member of a profession, so you should look up his license to see if his story checks out.

Example: I did a background check on someone who claimed to be a Licensed Clinical Social Worker (LCSW) but said he left the profession because he “wanted a change.” The change he wanted was to avoid discipline for sexual misconduct. He was on probation with his state’s licensing board due to “sexual touching/sexual remarks directed at a patient.” While he was on probation, another patient in another city reported him for the same offense, and he lost his license.

6. Criminal records: You likely will not be able to run an official criminal background check on someone without having a legitimate business purpose for doing so, and even then you’d need the person’s permission to do it.

An official criminal records check is not necessary, however. I use an online reporting service for this, and while it’s not perfect, I have been impressed with the results. You’ll pay a small fee (usually $20), but it’s worth every penny. I use beenverified.com, and it’s the only such service I recommend.

Example: A father felt that there was something not quite right about the man who was dating his daughter. Five minutes later, we knew that he had beaten his pregnant girlfriend nearly to death in another state and had domestic violence charges pending in yet another.

I warn you that not all jurisdictions report timely and completely, so this is not foolproof. Still, I urge you not to skip this step.

7. Prison time: Your state’s Department of Corrections website has an offender search for all current and released inmates going back several years. Check every state in which he’s lived.

This doesn’t work if he’s been in the county jail but was not sentenced to prison. Most county sheriff departments and metropolitan police departments have a similar website and arrest reports for their jurisdiction, however.

Example: I did a criminal background check on a man in a distant state and found that he hadn’t been convicted of a crime. He was in the county jail, though, awaiting trial on multiple felony counts that included running an auto theft ring in several states.

8. Sex offender registry: Similarly, look him up on the state sex offender registry for every state in which you know he’s lived. The FBI maintains a directory of these, so you can simply click on the link of the state in question (https://www.fbi.gov/scams-and-safety/sex-offender-registry). While you’re at it, quickly check the national registry at https://www.nsopw.gov. These are very thorough and are free and easy to use.

9. Property records: These are usually (but not always) maintained on each county’s tax assessor’s website. These sites are free and easy to use, but it can be very tedious to go to every county’s website where you think me may own property. Do it anyway, because it’s important to know what real property he owns, WITH WHOM, and whether there are any encumbrances on the property (such as liens).

Example: A woman was wondering if her new boyfriend was being honest when he said he owned his own home. We looked it up, and indeed he did own his own home… with his wife of 35 years.

10. Court records: As with real property records, you’ll probably have to go to each court’s website. Sometimes, you may have to pay a small fee to view documents online. This is the place to find out if someone has been the defendant in a criminal trial, for example, and sometimes you can find marriage and divorce records here.

11. Driving records: As with general criminal records, you probably won’t be able to order another person’s driving record without his permission (check your state’s law here https://www.dmv.org/driving-records.php), so don’t bother. The above tips about criminal convictions, jail time, and similar will tell you everything you need to know. Most states report to a central electronic database, and beenverified.com will have this information. It doesn’t have details, but you can see whether something was an infraction such as a speeding ticket or a more serious criminal charge. Once you know that and know the jurisdiction, you can check the county court’s database as described above if you need more details.

But more to the point: Ask him: Has he got a driver’s license? If not, why not? There is almost nothing he can say here that will be a satisfactory answer. There are a few reasons why an adult wouldn’t have a driver’s license, and 99 percent of those reasons are bad. Typically, it signals a substance abuse problem or child support arrears.

12. Online presence: Odds are, you’ve already Googled him six ways to Sunday, so there’s little to add here. One red flag you may have missed: If he hasn’t got much of an online presence at all, that’s quite unusual in this day and age, and you should figure out why. People who use assumed names and move around a lot don’t. Almost everyone else does, even if they don’t really care to.

13. Ask him: You can tell a lot by the way a person answers a question. Pay attention to the answer. If the person answers a different question than the one you asked, something is wrong.

Example: If you ask someone if he uses drugs and he says, “That’s ridiculous. I don’t even drink,” note that he didn’t answer your question. A friend of mine asked a man if he had ever abused a woman. He answered, “I mean, I’ve never beaten up a woman, if that’s what you’re asking.”

People rarely lie outright. People often fail to tell the truth, however.

By the same token, he may answer a question honestly, but we don’t want to hear the answer. We’ve got to keep working on that. It’s unfair to expect a man to be someone he’s not and then be disappointed or angry when he doesn’t change.

In conclusion: I believe most people are honest and downright terrific. That has been my experience. Further, some of the best people I know have committed crimes or have made other serious mistakes in the past, but they have taken responsibility, made amends, and are now committed to leading an ethical life. We have ALL made mistakes.

Every now and then, however, we encounter a person who hasn’t got our best interest at heart and may be physically, emotionally or financially dangerous.

It is our responsibility to be able to tell the difference and to protect ourselves.

When in Rome (again): Why that viral Facebook post is nonsense

Every few months, your Facebook friends share this post:

“All your posts can become public tomorrow, even the messages that have been deleted or the photos not allowed. After all, it does not cost anything for a simple copy and paste. Better safe than sorry is right. Channel (whatever) News was just talking about this change in Facebook’s privacy policy. Better safe than sorry.

I do not give Facebook or any entities associated with Facebook permission to use my pictures, information, messages or posts, both past and future. By this statement, I give notice to Facebook it is strictly forbidden to disclose, copy, distribute, or take any other action against me based on this profile and/or its contents. The content of this profile is private and confidential information. The violation of privacy can be punished by law (UCC 1-308- 1 1 308-103 and the Rome Statute).

NOTE: Facebook is now a public entity. All members must post a note like this. If you prefer, you can copy and paste this version. If you do not publish a statement at least once it will be tactically allowing the use of your photos, as well as the information contained in the profile status updates. DO NOT SHARE. You MUST copy and paste.”

While this seems “hoax-y” on its face, it’s surprising how many people believe it and share it, thinking, as the post says, “better safe than sorry!”

Here’s why this action is unnecessary and ineffective:

The UCC doesn’t apply to Facebook

The UCC is the Uniform Commercial Code, which applies only to contracts and only to contracts involving the sale of goods.

The UCC was written by a committee of contract lawyers known as the National Conference of Commissioners on Uniform State Laws (NCCUSL). NCCUSL and other similar consortia draft sample legislation, because legislators are generally not experienced in highly specialized areas of law. These consortia draft and periodically revise (as courts settle disputes and thereby add to our understanding of disputes) a body of sample laws. State legislators can then adopt all or part of these sample codes. All state legislatures except for Louisiana (which follows the civil code system established by Napoleon in 1804 rather than the English common law model followed by other states) have adopted the UCC as part of their state code and administrative rules (while no state has adopted it word-for-word, as all states find it necessary to modify it to fit that state’s particular needs).

No matter in what form your state has adopted the UCC, it would be cited as part of your state law and wouldn’t be called the “UCC” (for example, as “Tennessee Code Annotated _____”). We only cite to the UCC for academic purposes as I’m doing here, so if someone is trying to tell you that something “violates the UCC,” you know they’ve got it wrong.

Plus, Facebook wouldn’t be governed by your state’s version of the UCC, anyway. The UCC (as codified by your state) concerns only the sale of goods (and some related shipping paper such as bills of lading or warehouse receipts).

“Goods” are defined by the UCC as tangible things that are “movable at the time of identification to the contract for sale.” Facebook posts are not tangible movable objects, so UCC-derived state laws do not apply to Facebook posts.

The Rome Statute doesn’t apply to Facebook, either

The Rome Statute is even less relevant than the UCC.

The Rome Statute means The Rome Statute of the International Criminal Court, so-called because it was adopted at a diplomatic conference in Rome, Italy, in 1998 (and became effective in 2002).

It established the International Criminal Court (ICC) and delineated four types of crimes for which the ICC has jurisdiction: war crimes, genocide, crimes against humanity, and crimes of aggression.

While we all might agree that plenty of Facebook posts and photos seem like crimes against humanity, they are not, so the Rome Statute does not apply to Facebook.

The UCC and the Rome Statute (as well as the Berne Convention, for some reason) are often cited by conspiracy theorists such as “sovereign citizens” in their writings. If you see these references, it’s safe to assume that the entire document is suspect.

In fact, as a (very) general rule, if a writer is telling you that a certain act is illegal or that some action is required by law but cannot cite to a specific state law or administrative rule (or a federal law or administrative rule, if those apply), along with relevant court cases if necessary, the writer is not citing to legal authority and should provide you with that information if you ask for it.

Facebook as a public entity

Facebook became a publicly-traded company on May 18, 2012. In other words, part of the company became available for investors to buy in individual shares on a public stock exchange, in this case NASDAQ.

This doesn’t make Facebook “public” in the sense that it is part of the government or is a quasi-government entity, as some people have asserted. It doesn’t affect copyright or privacy settings. It also doesn’t change the contract you’ve got with Facebook.

You and Facebook have got a contract

When you set up your Facebook page, you agreed to Facebook’s terms of service (www.facebook.com/legal/terms), thereby entering into a contract. If you read these terms, you’ll see that you agreed to allow Facebook to use quite a bit of your content for a variety of purposes. You can’t change this agreement on your own, not by posting a notice on your Facebook wall or by any other means. You can end the relationship whenever you want, of course (and so can Facebook), but content that you posted may linger.

This is true of all social media: If you don’t want something to be public or to be used for a purpose that you didn’t intend, the only safe course is to keep it to yourself and don’t post it on the Internet.

How to Succeed at Law School While Really, Really Trying

To the first-year law students of Willamette University College of Law:

First, congratulations! It’s possible that no one has said that to you, because they were busy expressing concern over how you’re going to pay for this or whether you think you can get a job when you graduate. I’ll say it: Good for you for choosing this noble profession and for believing in yourself and for believing that you can be an important member of it. You’re right. You can and will.

Second, you’ve chosen the right law school, and it was right in choosing you. Willamette is serious about integrity and public service. The faculty and staff will sharpen your thinking while preparing you in practical ways. In my years of practice, I am more and more grateful for the education I received there, and for the relationships I have maintained with faculty, staff, and fellow lawyers.

Third, you can do this. It’s hard, but I testify that it is worth it. You can graduate, pass the bar, get a job, and pay off your student loans. All of us did it, and so will you. Now, should you do it? Do you belong here? Are you sure this is what you want? Is the expense worth it? You may be asking yourself these buyer’s remorse-style questions, and you may be having these doubts. I was plagued by these questions and had these doubts, too, and a wise professor answered this way: “There’s no way to know these things right now. You’re here. Commit to it. Finish the first year, and then reevaluate.”

I took her advice, and I’m glad I stayed. I’m glad I’m a lawyer. I believe you’ll be glad, too.

Our first week of law school, another wise professor gave us a short speech about her experiences in law school and gave us some advice based on those experiences. She encouraged us, and it is my honor to be the person who encourages you now:

1) Don’t listen to advice. I mean, listen to this advice and the advice of people who support you, but try to tune out the naysayers. I have never met as many doom-and-gloom types as I met lurking in and around law school. You will be told that you won’t get good grades unless you do THIS and that you’ll never get a job if you don’t take THAT externship and that you’ll never pass the bar unless you choose THAT bar study course. Take recommendations, but choose the things that you believe are right for you and ignore those who would try to discourage you.

Worse, people may be telling you that you are not smart enough, that you’re too old or young or that you won’t be able to pay off your student loans. It’s simply not true. You know yourself better than those people, and something in you believed you could succeed at this. Listen to that voice always. It knows. You know.

Plus, for every alleged “wrong” thing about you, there is someone who has more of that or less of that, and they prevailed. The bar is populated with the unlikeliest of candidates who succeeded anyway. One of them is talking to you right now. The things that are different about you are the very things that will make you a gifted lawyer. You will understand your clients’ legal problems because you will understand your clients, and this understanding comes from the things that are unique about you.

2) Speaking of advice, you must know yourself and how you learn. Reflect on that and reject advice that would have you do the contrary. For example, I learn by reading on my own, writing my own outlines, really working with the material, and reflecting on it. For this reason, study groups and video lectures were not helpful for me. Perhaps you learn by talking about the material with your classmates, or maybe you learn by quizzing yourself with interactive study aids. Don’t waste your precious study time by following someone else’s style.

3) You’re a market now, but try not to feel pressured to buy everything. Some study aids are very helpful. (I found the Examples and Explanations series invaluable for some areas of law.) Many study aids will be useless to you. It’s hard to know which is which unless you experiment a little, but try not to throw too much money at a difficult subject, and try not to waste too much time and effort on unhelpful study aids, exam preparation courses, and the like. And…

4) Here’s why: There’s no substitute for hard work. Write your own outlines, don’t “book brief” (highlight the holding and such in your textbooks), maybe don’t team up so much in study groups at the expense of solo study. You cannot learn the law unless you work with it, read about it, talk about it, ask questions about it, question it, sift through the fine distinctions, read and write sample exam answers, etc. Do not be outworked. Your willingness to work hard is the key to success in law school. The importance of hard work cannot be overstated. Work hard.

Side note: You’ve noticed that some of your classmates participate in class constantly and seem to know more than you and rush the podium after every class. There’s nothing wrong with that, but they are not the ones who make the best grades necessarily.

Who makes the best grades? Those who work hard. So work hard.

5) Ask for help. 2Ls and 3Ls are thrilled to answer questions and give you their outlines and other study aids. Overcome your shyness and go to your professors’ office hours and introduce yourself to local lawyers. You’re one of us now. In addition to your professors, the administrative staff and library staff were nothing short of miraculous for me. I could not have done it without them. Get to know them early, and let them support you. Often overlooked: Ask any graduate. We will help you. Soon, you’ll be the one the 1Ls are asking for help, and you’ll wonder why it was ever so awkward for you to ask.

6) Only focus as much on the Rule Against Perpetuities as your Property professor advises. It’s not on the bar exam in any significant way. Plus, it has been resolved by statute in every jurisdiction. It simply never comes up out here. There are a precious few things in law school about which you can legitimately throw up your hands and decide to let them go. This is one of those things, so why not savor it?

Seriously, there are some things you’ll get and some things you won’t. Some classes will seem easier than others. That is normal, and it doesn’t mean that you’re not cut out for this. Don’t let your struggles define you. We’ve all got our blind spots. Accept it, work on it, and keep going. Keep going. Keep going.

Be encouraged, and try to cast your doubts aside for now. Justice William Joseph Bauer of the United States Court of Appeals, 7^th Circuit, gave us this insight during Willamette’s Intensive Trial Practice, and I’ve never forgotten it: The United States is unique, because after it was borne of a revolution, the governance of this new nation wasn’t given to the prevailing military powers as it always is. The victors gave the governance to the people, and that is safeguarded by the lawyers, the guardians of the Constitution. And that is who you are; that is the profession you have chosen.

Your colleague,

Robin Littlefield

Attorney at Law

Class of 2008

Miranda before Miranda: The real reason for the acquittal of Lizzie Borden

Lizzie Borden took an axe, gave her father 40 whacks

When she saw what she had done, gave her mother 41.

--Popular jump rope rhyme

‘Dammit, sir’ Judge Stevens said, ‘Will you accuse a lady to her face of smelling bad?’

--Town fathers declining to investigate the stench of decaying flesh coming from Miss Emily Grierson’s house, William Faulkner’s “A Rose for Emily”

I became interested in the story of accused ax murderer Lizzie Borden when I was a child. We girls sang the above rhyme while jumping rope, and the story came to life for us as we watched the 1975 ABC television movie “The Legend of Lizzie Borden.” I recently re-watched a portion of the movie and was surprised at its overall quality and faithful adherence to the facts—rare attributes for a 1970s-era made-for-TV movie. (My sister and I were attracted to it for a different reason: It starred our favorite actress, Elizabeth Montgomery, who was better-known as Samantha from “Bewitched.”)

There was a small flurry of media articles about the case recently when Lifetime premiered its TV docudrama, “Lizzie Borden Took an Ax.” This renewed interest also renewed my own interest in the case, and so I’ve been re-reading David Kent’s excellent The Lizzie Borden Sourcebook (Branden Books, Boston, 1992). Mr. Kent has reproduced newspaper clippings, the transcript of the inquest, and other key documents from the Borden case, and it’s one of the best resources I’ve read on any trial. It’s quite powerful to have all of this key information compiled into one volume with no commentary. One can absorb all of the information and make up one’s own mind. I wish I had such a book for every notorious legal action in history, because it frustrates me that one or two talking heads will advance a theory of the case—and then that theory will become the prevailing one even though it is wholly unsupported by the facts. For example, I had bought into the theory that Lizzie Borden was acquitted largely due to her sex, but in reading the case materials, I have discovered that I was wrong.

Facts of the case and procedural history

Lizzie Borden’s father and stepmother, Andrew and Abby Borden, were murdered in their home in Fall River, Mass., on the morning of August 4, 1892, by repeated crushing blows to the head from an axe, hatchet, or similar tool.

Also living in the home were Mr. Borden’s adult daughters Lizzie, who was home at the time, and Emma, who was visiting friends in a nearby town, and the family’s maid, Bridget Sullivan, who was also home at the time. John Morse, the brother of Abby’s and Emma’s dead mother, was an overnight guest and had gone into town all morning on business. John, Emma, and Bridget were not suspected. John and Emma had solid alibis, and Bridget had no motive.

Lizzie Borden was arrested on August 11, 1892. After a sensational trial, a jury found her “not guilty” on June 20, 1893. Even though Lizzie was acquitted of murder, public opinion has not been kind to her. Many people assume that she was guilty and got away with it. Indeed, when I mentioned that I was writing about the case, many people were surprised when I reminded them that she was found not guilty and in fact lived as a free woman until her death at age 67.

Motive for murder

By many accounts, relations were tense at the Borden home in the months leading up to the murder. Andrew was a frugal patriarch, which frustrated Lizzie and Emma, who wished to keep up with the other young ladies in town with new dresses, a more fashionable address, and vacations. Further, Lizzie and Emma did not have a warm relationship with their stepmother, taking their meals separately and referring to her as “Mrs. Borden” and not “mother” or “Abby.”

Further, Andrew recently had grown impatient with Lizzie’s pet pigeons that she kept in the barn and had hacked them to death with a hatchet, and there was ongoing tension over whether Andrew would leave his daughters a large share of his estate in his will, or whether the bulk of it would go to stepmother Abby. Andrew’s former brother-in-law John was there to talk business with Andrew, too, which may have added to the family tensions.

Outside the home, Mr. Borden was a shrewd and unyielding businessman. While he appears to have been respected in town, he is reported to have been frustratingly tight-fisted as a landlord and loan officer.

In other words, while Lizzie had some motive for killing her father, it’s equally likely that other people did, as well.

Opportunity

To me, this is where the case gets tricky.

Both Lizzie and Bridget were cleaning windows and doing other chores both inside and outside the three-story house that morning. Andrew Borden was napping on the couch in a parlor on the first floor of the house, while Mrs. Borden was upstairs tidying a guest bedroom. Bridget the maid went upstairs to lie down in her bedroom on the third floor of the house. (The entire family had fallen ill to apparent food poisoning, because cheapskate Andrew had insisted that the family gamely continue to eat a mutton stew that had languished in the kitchen for days.)

At some point during the morning, the killer attacked Mrs. Borden in the upstairs guest bedroom, disabling her with a blow above the ear and then finishing the job with 19 hacks to the back of the head as she lay on the floor. Later, the killer stood over Mr. Borden as he slept on the sofa and delivered 11 blows. (Everyone who comments on this case wryly notes at this point that it wasn’t 40 and 41 whacks, so I will, too.)

Because the family religiously kept the doors locked and because the house sat on a busy street where a man fleeing the scene and covered in blood would be noticed, most of the suspicion focused on Lizzie, who was the only person in that part of the house and who had a motive, however tenuous. Nothing was missing from the home, although cash and other valuables were at hand. Further, Lizzie gave several contradictory statements to the police and generally acted suspicious, for example burning a dress that she said was ruined because she had accidentally brushed up against wet paint while wearing it.

Did Lizzie do it?

I think it’s impossible to say. While her disdain of the elder Bordens, unique access to the murder scene, and suspicious behavior make her the likely culprit, it seems equally unlikely that a relatively sane woman who wasn’t violent before or since hacked to death her parents in cold blood for no good reason. Further, it’s not easy to use an axe. If you’ve ever tried to chop wood for the first time, you know how much practice and upper body strength it requires. It’s hard to imagine that a woman who had never or rarely used hand tools and who wasn’t very large or strong could carry out these murders. Also, Lizzie wouldn’t have had time to leave the house or change clothes, so why wasn’t she covered in blood, and where did she stash the murder weapon?

While it seems hard to believe that an outside party could have committed these crimes, it’s equally hard to make the facts of the case fit Lizzie, too. This ambiguity, coupled with the lack of forensic technology of the day, means that we’ll never know.

Just because I’m a woman

Without fail, whenever I bring up this case, someone will remark: “She was clearly guilty, but I think she was acquitted simply because the jury couldn’t fathom that an upper class lady of the day could commit such a crime.” I used to agree, but now I’m not so sure.

First, Lizzie was arrested and tried for the crime—and was judged guilty in the court of public opinion—so it was apparently easy for Lizzie’s community to imagine that a lady could hack her parents to death in cold blood. Also, while it was somewhat rare, women were of course convicted of crimes in the 19th century. Notably, in 1865 Mary Surratt was convicted of conspiring with John Wilkes Booth and others to assassinate President Lincoln, and she became the first woman to be executed by the federal government.

While it’s likely that the jury were uncomfortable with the idea that one of the town’s daughters was guilty of these gruesome crimes, I think the real problem here was one of evidence.

Body of evidence

First, police were unable to find a murder weapon. They found two hatchets in the home’s basement, but neither tool could be definitively shown to be connected to the murder. (With today’s forensic science, the crime lab would test for traces of blood and tissue and would determine whether the cutting edge of either hatchet matched the victims’ wounds, but this level of analysis wasn’t available at the time.) Secondly, while police tested stomach contents and attempted to determine the time of death based on the date at which the victims’ blood congealed, they were unable to pinpoint the time of death with any certainty as they might be today. This perhaps would have been helpful in establishing Lizzie’s degree of opportunity to commit the crimes. Further crime scene analysis might have inquired into whether Lizzie possessed the necessary height and weight to deliver the blows at that angle.

The most damning evidentiary deficiency, however, was one of admissible testimony, and it’s fascinating to me that the misstep here can and does happen today.

Under arrest

Thanks to TV cop shows, we’re all familiar with “you have the right to remain silent… anything you say can and will be used against you in a court of law… you have the right to talk to a lawyer.” This is a restatement of your Fifth Amendment right to not testify against yourself when you’re a criminal defendant and Sixth Amendment right to be represented by a lawyer. The 1966 case Miranda v. Arizona prescribed the familiar words that we know today, but the underlying requirement has always been the same: When a person is under arrest, he or she cannot be compelled to answer questions and must be given the opportunity to have the assistance of counsel.

Between the date of the murders (Aug. 4) and Lizzie’s being locked up (Aug. 11), police questioned Lizzie at length, and the state held a three-day inquest at which Lizzie was called to testify. She made plenty of damning and contradictory statements during this period. Even though she wasn’t in jail, she was not “free to leave” and was therefore technically under arrest. The State of Massachusetts, in the form of the police questioning and the inquest, violated Lizzie Borden’s Fifth and Sixth Amendment rights by compelling her to answer questions against her own self-interest even though she was to become a criminal defendant, and they did it while denying her the right to an attorney.

When the prosecution tried to admit this testimony at her trial, the defense objected, and the judge sustained. The prosecution was left with its case of flimsy circumstantial evidence and no murder weapon, and I argue that this is the primary reason that the jury (correctly) acquitted Lizzie Borden.

Crime, no punishment

Lizzie Borden inherited her portion of her father’s estate and bought a better house in the nicer section of town. She lived a quiet life and died at age 67. After her acquittal, the State didn’t seriously pursue another suspect. Lizzie left a large portion of her estate to the local animal rescue league—to prevent cruelty to living creatures.