Evidence
As the Supreme Court withstands an unprecedented intimidation campaign as it prepares to issue an (official) opinion concerning the continued viability, if you will, of Roe v Wade it would be well to keep in mind what is real and what is not. As people like New York Senator Charles Schumer, who has never met an exaggeration he wouldn’t use, smears members of a political party and attempts to tie them to the actions of a crazed gunman in Buffalo and a mentally ill teenager in Texas, it would be good to keep in mind what is real and what is not. As the so-called January 6 committee broadcasts edited, one sided Stalinesque presentations, it would be prudent to keep in mind what is real and what is not.
In law the issue is what is evidence and what is not evidence. The question to be asked when contemplating whether there is evidence establishing a link to the conclusions being propounded? What is its nature, what is its quality, what is its reliability? And, most importantly, is it relevant?
The Justice System is about proof. It’s about evidence. Under the Constitution, neither man nor woman may be deprived of liberty without Due Process of Law. And Evidence is the essence of Due Process of Law. Notice as the nature of an allegation is basic to Due Process. As is a requirement that evidence be presented before a neutral trier of fact.
It’s not enough to allege. It is not enough to charge. It’s not enough to shout outrage from the middle of the street. The Justice system is not some Lewis Carroll fantasy of “verdict first then give them a trial.”
This term we’ve been reminded about these aspects of Due Process from two sources. The first from the musings of an Old Pro. The insistence on evidence that is based in reality from a smart, tough, experienced prosecutor’s prosecutor, acting as the consummate professional. And the second from a decision by the Supreme Court that affirms a basic first principle of evidence. Evidence must be relevant.
And for it to be relevant it must have something to do with an issue in dispute.
The Evidence Code in California is typical in the way it defines Evidence.
“Evidence means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.”
As stated, the most basic requirement for admissibility in a court of law is that the evidence must be Relevant. It must have something to do with what is sought to be proved or disapproved.
Relevant means “having any tendency in reason to prove or disprove any disputed fact that is of consequence to a determination of the action.” Note the requirement that the tendency must be “in reason” and relate to a fact “of consequence”.
William Barr, who’s career I’ve followed for decades and whom, when he was appointed for a second term as Attorney General, I said was “The Real Deal” provided a glimpse of what it takes to insist on real evidence in his recent book about his service to three Presidents.
He related how, in a tense meeting with President Trump, he stood on a principle that most experienced prosecutors know. One may think a crime might have occurred, one may suspect it happened, but to act one must have evidence.
William Barr told the President, “I had no doubt there was some fraud in the 2020 election. There’s always some fraud in an election that large.” But what his Justice Team saw after looking into the allegations of the President’s team, was that “there was no evidence of fraud on a scale necessary to affect the outcome of the election.” Yes, the Democrats had taken advantage of rule changes that increased the opportunity for fraud, and, no, they didn’t follow statutory rules intended to decrease the opportunity for fraud. “Still,” as he put it, “the opportunity for fraud isn’t evidence of fraud.”
He was direct with the President. And in a way a prosecutor should be direct. He told him, his legal team had been feeding his supporters a steady stream of sensational fraud claims, “without anything resembling substantiation.” Many of the claims turned out to be “patently frivolous.” Other claims were “not supported by the available evidence.” Tellingly, he told the President, “Your legal team keeps publicly saying “fraud”, “but the arguments in court don’t claim fraud.” The arguments they actually made in court was that a “State didn’t follow rules . . but that is not the same as evidence of fraud.”
In his most candid statement he told the President, “The reason you are in this position is that, instead of having a crackerjack legal team that had its shit together from day one, you wheeled out a clown show…” And “your legal team continues to shovel this shit out to the American people. And it’s wrong.”
And when he got to the bottom line, as regards the Justice Department, he told the President, “Our mission is to investigate and prosecute actual fraud, The fact is, we have looked at the major claims your people are making, and they are bullshit.”
That is what a real prosecutor does. And, having served as a District Attorney for over two decades, I can verify, it is not pleasant. I’ve had to tell police detectives, police chiefs, County Sheriffs, and Legislators from Board of Supervisors members to Congressmen, the same thing. How much more difficult would it be to tell the President of the United States? But as I said, Bill Barr is the Real Deal. And he stood on the inviolable principle that the Justice system requires real evidence, relevant evidence. And dressed up bullshit doesn’t cut it.
In a similar way, although in more elegant language, the United States Supreme Court this term reiterated that the actions of Governors and even state Supreme Courts which deal with such vital issues as race must be based upon real evidence, not assumptions, not baseless opinions.
In Wisconsin Legislature v Wisconsin Elections Commission et.al. the State Legislature redrew district lines to apportion voters in accordance with population shifts revealed in the 2020 census. The Governor vetoed.
The matter made its way to the State Supreme Court which invited all parties to submit maps for its consideration. The State court chose the Governor’s map. Of course, then the Legislature sued.
At the heart of the dispute was the contention that a new black majority district should be added to the six that already existed. The State Court upheld the Governor’s desire to create a new majority black district “because there were “good reasons” to think the Voting Rights Act “may” require the additional majority-black district.”
The U.S. Supreme Court reversed the State Supreme Court and found whether it was the Court’s decision or the Governors, both failed to meet the evidentiary standards. Among other things it noted, “Rather than carefully evaluating evidence at the district level, the court improperly relied on generalizations to reach the conclusion that the preconditions were satisfied.”
It took issue with the State court basing its decision not on evidence, but on assumptions. Assumptions like those we hear every day. The State court said, “It is undisputed,” that “the party’s submission demonstrated” seven majority black districts could be redrawn in the proper way.
How often do we hear such language used on issues that we instinctively know are in fact disputable and how often do we just know the referenced demonstration is woefully insufficient to convince us?
And then there is always the icing on the cake in terms of so-called “expert” opinions. The court found the second part of the State court’s analysis “consisted of nothing but the statement that “experts from multiple parties . . . concluded political cohesion existed, and no party disagreed.”
As we saw during the pandemic deferring to so-called Expert opinion which is not based on facts, not based on real evidence ultimately proves itself to be worthless, as the Supreme Court found it was in the Wisconsin case.
And the last step in the analysis had similar deficiencies. Statistics. The most abused and most easily corrupted concept in countless so-called studies. The State court relied on one area of statistical evidence when the test required an analysis of the “totality of circumstances”. The Court said, “no single statistic provides courts with a shortcut.” And how often do we hear it contended that a single incident, a single occurrence, proved the whole?
So here we are. Rage about contrary opinions exists. As does bullying those who hold different opinions exists. Yes, and public attacks and threats on the Judiciary, attempts to physically intimidate Justices and their families regrettably exists. But no matter how loud, no matter how violently obstreperous, no matter how slick the presentation, one must keep in mind what is real, what is not. What is the proof?
What is the evidence?
For more writings by Phil Cline, visit philcline.com