Monday, March 19, 2012

Balances and bottles

I served as a juror last week.  It was a civil case, as opposed to a criminal case.  Civil cases and criminal cases have different burdens of proof (in the US system).  In a criminal case, the defendant must be proven guilty beyond a reasonable doubt.  In a civil case, the claims against the defendant must be shown to be more likely true than not true.

In the closing statements, each attorney used a different metaphor for the burden of proof.

The plaintiff's attorney said it was like a balance.  Each side places evidence on the balance, and they are weighed against each other.  If the balance tips just a little way towards the plaintiff, then it meets the burden of proof.

The defendant's attorney said it was like a water bottle that you fill up with evidence.  It starts out empty, and the plaintiff has to fill it up half-way.  Even if the defendant makes no effort to empty that bottle, the plaintiff may still fail to fill it up half-way.

I felt this was an interesting demonstration of how you can totally BS with metaphors.  Which metaphor do you think is more accurate?


Larry Hamelin said...

As far as I know, there's no consensus on how to construe burden of proof in either civil or criminal law. One of my political science professors (who used to be a prosecutor) used a football field simile, which would correspond to the water bottle simile provided by the defense attorney in your case.

Later, I'll ask my ex-wife, who's in law school right now.

drransom said...

Perhaps it's really like a balance that starts with a partly full water bottle on the defendant's side and an empty one on the plaintiff's? Or perhaps it starts with a feather on one side and a water bottle containing the defendant's heart on the other?

Deralterchemiker said...

I was always instructed to decide a civil case on the basis of which party had the preponderance of the evidence. I would bet that this left a lot of jurors wondering exactly what was the meaning of the word "preponderance."

DagoodS said...

In my opinion, the scale is the better metaphor for a civil matter (preponderance of the evidence) whereas the water bottle is better for criminal (beyond a reasonable doubt). Although that has more to do with who has the burden of proof; not the instant question regarding the standard of proof.

In a civil matter, there is a balancing of evidence presented by both sides. I cannot envision a situation where a civil defendant presents absolutely no evidence whatsoever. No cross-examination of any Plaintiff’s witnesses. No witness of their own. Not even their own client. Only in that rare situation would the water bottle make more sense.

Realistically both sides present evidence and the jurors weigh which proposition is more likely. We hear two sides of a tale (commonly called “He-said; She-said.”) and at some point in our mind come to a conclusion. Either we agree with his version, or we agree with her version, or we remain completely stumped and decided we cannot decide between them. In the same way, we hear the plaintiff and defendant—decide between Plaintiff’s version (Plaintiff wins), Defendant’s version (Defendant wins) or they are evenly balanced and cannot make a decision (Defendant wins. Plaintiff failed to preponderate.)

The reason I make the differentiation in a criminal matter, is there the Prosecutor has a higher burden of proof. The Defendant is presumed innocent. (Technically no such presumption exists in a civil matter.) I have often said in my opening statement, to impress this upon the jury, “We can sit here and play cards, or read magazines or surf the web. Asking NO questions, presenting NO witnesses and taking NO action whatsoever and you can STILL decide the Prosecutor has failed to sustain her burden of proof. She hasn’t filled the water bottle to reach ‘beyond a reasonable doubt.’*” Of course we don’t….but we want to get away from the idea of balancing information in a criminal matter. Make sure they know it is the prosecutor’s job to do all the work.

*just to keep consistent with the water bottle metaphor used in the blog entry.

Of course, lawyers for time immortal have struggled with the perfect analogy to explain the difference between “preponderance of the evidence” and “clear and convincing evidence” and “beyond a reasonable doubt.”