The burden of proof is not “beyond all doubt.”
When I explain to my students the burden of proof in criminal cases, I give them the example of a murderer who claims he could not be guilty because at the time he was kidnapped for experimentation by aliens.
Is it possible? Can you prove with 100% certainty it did not happen? No you cannot, so it is possible.
Is it reasonable? No.
So even if someone made such a claim, the jury could still convict them for the crime they are charged with.
After all, the idea of “guilty” is a legal concept that means that the state has proven its case beyond a reasonable doubt — not beyond all doubt, just a reasonable one.
Judge Brett Kavanaugh’s defenders seem to believe that the burden of proof to be elevated to the Supreme Court — not just in a criminal case — is beyond all doubt. As my students could tell you, such is not the case.
Most cases are proven with what is called “circumstantial evidence” for the simple reason that rarely is there an eyewitness to most crimes. As a result, the defendant is convicted — usually over his or her claims of innocence — based upon a trail of circumstances that at some point seem to represent something more than coincidence.
With that fact in mind, let’s consider the evidence against Kavanaugh.
First, unlike most criminal cases, we actually have a witness who testified under oath as to what happened. This witness, Dr. Christine Blasey Ford, had nothing to gain except grief by testifying. She is certainly not a “Democratic party operative” as some have claimed, having contributed something on the order of $80 to Democratic candidates. Hardly a big contributor. Her testimony was extremely credible, just ask Donald Trump. She has also provided support for her story, naming names of others present and showing evidence of discussing the incident prior to Kavanaugh’s nomination. As a result, her testimony needs to be weighed heavily.
Second, even if we accept Kavanaugh’s testimony, its value must be tempered by his history of lying under oath. It is clear from emails that he had previously lied under oath regarding his involvement in vetting a controversial judicial nominee. Such evidence is frequently brought up in court to impeach a witness’s credibility — evidence that someone had previously lied under oath can be used to support allegations that he has lied under oath on other occasions.
Next, Dr. Ford named Mark Judge as the other teenager involved in the attempted rape. That witness could easily exonerate Kavanaugh. His failure to do so speaks volumes.
Finally, the court can consider other evidence as to the defendant’s behavior. Typically, character evidence is not allowed in criminal cases. We don’t want juries convicting someone because he or she is a bad person. We want them convicting defendants they are convinced committed a specific act. However, evidence of prior bad acts is admissible if they go to a pattern of behavior that indicates that the defendant is likely to have committed the crime.
As a result, the police report showing that Kavanaugh was drunk and involved in a bar fight, the testimony of fellow college students that Kavanaugh was a mean drunk who could behave aggressively toward women, the 1983 letter in which he bragged about his drinking and puking, the statements on Kavanaugh’s calendars and his yearbook from the era that appear to indicate a pride in sexual aggression — despite Kavanaugh’s claims to the contrary — all would be admissible as evidence and point to Kavanaugh as being a nasty drunk who is certainly capable of the behavior he is accused of.
Similarly, the additional accusations against Brett Kavanaugh of sexual assault by Deborah Ramirez and Julie Swetnick would be admissible to show that he has behaved aggressively toward women. The court would have the opportunity to judge the credibility of these witnesses — something denied to us since the Senate has refused to call any witnesses on this matter other than Kavanaugh and Dr. Ford.
At some point, the weight of the evidence becomes such that the jury would become convinced “beyond a reasonable doubt” that the defendant is guilty. Based upon the above partial list of the evidence against Kavanaugh, it appears a jury would have a sound basis to find him guilty of the attempted rape of Dr. Ford.
This analysis should be of some concern to Kavanaugh. While his political defenders seek to ignore the growing evidence against him — setting aside the questions about his judicial temperament and his ability to remain impartial, questions that came up after his performance before the Senate Judiciary committee — there is the potential for criminal liability on this matter. Yes, this assault happened a long time ago, but in Maryland, where it allegedly occurred, there is no statute of limitations for the state to bring charges for such crimes. As a result, Kavanaugh has much to fear from an aggressive prosecutor seeking to make a name for him or herself.
All this is irrelevant as to whether Kavanaugh should be elevated to the Court. I previously wrote on how the burden of proof against him is not very high since he does not currently face criminal charges, instead he faces promotion to one of the most powerful and prestigious positions in the country. Nevertheless, we should set aside the ridiculous assertions of his supporters that there is no evidence to support the allegations against him.
Yes, there may still be some doubt, but the remaining doubt is probably not reasonable.
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