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Degrees of proof

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“If these allegations are true, he must step aside.” So said Senate Majority Leader of Alabama Senate candidate Roy Moore, thereby creating one of the great political trap doors of recent days. [Note: McConnell has since expanded his statement to say that Moore should drop out of the race.] What, after all, does it take to establish the predicate, that “these allegations are true”?

McConnell didn’t say. That makes it easy, later on, to say the condition either had been met or had not, depending on how the story develops. This might be called an unusually flexible form of moral relativism.

Mitt Romney, the former presidential candidate who himself might be a contender (again, and in another state) for the Senate, had another take on the Moore situation. His was much blunter, and include no weaselly back doors: “Innocent until proven guilty is for criminal convictions, not elections. I believe Leigh Corfman. Her account is too serious to ignore. Moore is unfit for office and should step aside.”

Among other things (such as making a good deal of ethical and logical sense), this is a formulation an attorney, or a judge, might appreciate and even expand upon.

In their world, consideration has to be given to evidentiary standards and burdens of proof – and you will notice the plurals. In a court setting, different standards apply in different instances. In civil cases, certain types of cases and proceedings turn on a Preponderance of the Evidence, or on Clear and Convincing Evidence or on Substantial Evidence. In many criminal cases, the extremely rigorous Beyond a Reasonable Doubt applies, but some court-approved actions can happen with Probable Cause or with Reasonable Belief and Reasonable Suspicion or even just Credible Evidence.

So what about a case like Moore’s?

He has not been charged (in this case at least) with a criminal charge, and he’s not even being sued civilly (though it’s hard to rule that out for the future). The question here is whether he ought to be considered for one of the most important jobs in our government, which ought to mean that the standard of evidence needed to establish, let’s say, a serious problem, should not be especially high.

Is he guilty beyond a reasonable doubt? That’s probably not been clearly established, but no newspaper report alone reasonably could establish that.

Do we have something on the order of Substantial Evidence or Probable Cause? Clearly.

We have a number of people, on the record, who have argued that sexual harassment, of themselves as teenagers, did occur; and a great deal of corroborating evidence and testimony has been established alongside that. Moore has responded, and none of his responses have done anything to diminish the weight of that evidence against him.

There’s not enough to convict Moore of a crime in a court of law. In the court of public opinion, with its lower standard of proof, among people willing to honestly weigh the evidence? Oh yeah.

Which is not a prediction, in today’s political climate, that this is likely to happen.
 

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