Wednesday, February 4, 2015


It's a pesky thing this business of proof.  

I know, I know.  I'm a criminal defense lawyer.  I'm inclined to believe in the idea that someone saying so may not be enough.  Especially when there's like actual evidence pointing the other way.

Here in Ohio, the courts supposedly follow what's known as the Physical Facts Rule.  Here's how our Supreme Court put it in McDonald v. Ford Motor Company.
The testimony of witnesses which is positively contradicted by the established physical facts is of no probative value and a jury will not be permitted to rest a verdict thereon.
McDonald was a 1975 case of products liability.  But the rule didn't come with that limitation. People can't see through walls.  Dead bodies do not migrate, on their own, from one place to another.  If the victim was stabbed with the knife it should be her DNA in the blood, not just the DNA from the alligator the defendant skinned the week before.

The rule also didn't come with legs.  You'll search through Ohio case law and find a few mentions of it.  You won't find it followed.  Frankly, it's rarely even mentioned.

Which is part of why I explain to my clients, and their families, and the readers of this blawg, that proof has nothing much to with what actually happened.  Proof is about what juries believe.  And juries . . . .  
I don't think I've ever before quoted Hillary Clinton here, but she has a point.  
The science is clear: The earth is round, the sky is blue, and #vaccineswork.
But try convincing folks.

Strunk & White offered as advice 
If you don't know how to pronounce a word, say it loud.

Which brings me to Scott Greenfield who points out that when you look at the evidence, Emma Sulkowicz's case won't hold up.  Sulkowicz is Mattress Girl, the young woman who wanders around Columbia University carrying a mattress as proof evidence performance art.  It's intended to shame the University into expelling a young man for raping her - a charge supported by her well-after-the-fact claim that it happened but nothing else.  And rebutted by a mountain of evidence.

Of course, the evidence doesn't matter.  Because Sulkowicz says she was raped.  And those who accuse never lie.  If there's no evidence . . . . HAH! What more proof do you need of his perfidy.

A bit over a year ago, I started a blog post this way. (I'm deleting the footnotes now, but they're maybe worth your time to go back and look at, and because even after doing this for 5 1/2 years I can't get the formatting right, it's kind of fucked up.)
With cause, Gideon likes to quote this passage from Justice White's* opinion for a unanimous court in Coffin v. United States.
Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, "a passionate man," seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, "Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?" to which Julian replied, "If it suffices to accuse, what will become of the innocent?" Rerum Gestarum, L. XVIII, c. 1.
White relates that story as he's tracing the genesis and history of the presumption of innocence.  He goes on to cite Fortescue. 
Indeed, one would much rather that twenty guilty persons should escape the punishment of death than that one innocent person should be condemned and suffer capitally." De Laudibus Legum Angliæ, Amos' translation, Cambridge, 1825.
Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem.
These are bedrock principles of Anglo-American jurisprudence. Their heritage predates the republic, predates Blackstone, predates even the Emperor Julian.**
 OK, like I say, sorry about the formatting.  

Anyhow, the thing about bedrock principles is that they're fine in principle.  But if we follow them, the republic will crumble.

Oh, wait.  No, it won't.

The thing about bedrock principles is that we don't actually want to follow them. 

You know, Coffin was decided in 1895.  Blackstone is the 18th Century.  Fortescue the 15th.  And the Emperor Julian the 4th.

This is the 21st Century.  We know better than to apply bedrock principles now.  Hell, even the Physical Facts Rule rests on the shaky premise that facts matter.  

The world is more complicated than Sherlock Holmes thought.  He was wrong when he told Dr. Watson in The Sign of the Four,
When you have eliminated the impossible, whatever remains, however improbable, must be the truth.
There are, after all, many possible things that are not true.  On the other hand, whatever the White Queen managed to convince herself of before breakfast, no impossible things are true.

And j'accuse is not proof.

1 comment:

  1. Long time lurker, first time comment.

    It's real easy to stick to principles when there's nothing at stake, or the stakes aren't high enough to disturb one's sleep at any rate. (And thinking that way about one's neighbour's liberty is both sad and a whole distinct problem)

    "Better that twenty guilty persons..."
    "Better that ten guilty persons..."

    Assuming general form "Better that N guilty persons..." then I suggest we (collectively) have allowed N to get awfully small to the point where now N < 1. Better the illusion of safety than I know not what.

    Thank you for your blog, I regularly enjoy reading it.