Vail Law: Anyone can make an allegation; to prove it is another thing (column)
December 26, 2017
It has been said that gossip is the glue that binds the social fabric. Long before the internet or even before Johannes Gutenberg introduced printing to the gob-struck world, gossip, big brains and opposable thumbs carved us apart from the other great apes.
Gossip may be fairly defined as idle talk or rumor, especially about the personal or private affairs of others. Rumor, in turn, may be thought of as a story or statement in general circulation without confirmation or certainty as to facts. And it is this last nasty bit — the without confirmation of the facts part — that causes all the trouble.
In our hypercharged, hypersensitive, overloaded-with-media society, the speed, force and consequence of rumor has enjoyed exponential growth. The danger, as Mark Twain famously observed more than a century ago, is that "a lie can travel halfway around the world while the truth is putting on its shoes." Put that on steroids in the age of internet.
Recently, titans of industry, captains of the media and various political bigwigs have been brought down by mere allegations, most of them of the #MeToo variety. My use of the word "mere" is not intended to be pejorative; rather, it is intended to distinguish allegation from proof, to parse accusation from the "beyond a reasonable doubt" standard required in a court of law.
Which brings us to our topic.
First, I will remind readers that allegation and proof aren't necessarily them same thing. For those old enough to remember, think back to the McMartin Preschool sexual abuse scandal in the 1980s. There, members of the McMartin family, who operated a preschool in Manhattan Beach, California, were charged with numerous acts of sexual abuse of children in their care. Accusations were made. Arrests followed. Pretrial investigation ran for three years, and the trial spanned another three.
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After six years of criminal trials, no convictions were obtained. All charges were dropped in 1990. By the time the trial ended, it had been the longest and most expensive criminal trial in American history. The case was part of day care sex-abuse hysteria, a moral panic over alleged Satanic ritual abuse in the 1980s and early 1990s.
Or think back to the Duke Lacrosse team scandal where, in 2006, three members of the Duke University men's lacrosse team were falsely accused of kidnapping and rape. The allegations were made by one of two exotic dancers that members of the men's lacrosse team had hired to perform at an off-campus party.
Durham District Attorney Mike Nifong stated publicly that a rape had taken place and prosecuted the three students vigorously, even as evidence mounted that raised serious questions about the accuser's credibility and the veracity of the charges. On April 11, 2007, North Carolina Attorney General Roy Cooper stepped before a crowded press conference and spoke the words that ended one of the most publicized legal stories in recent American history: "We believe these three individuals are innocent of these charges," he said.
The point I'm making is that just because someone said so, doesn't make it so. Sorting out the difference is, in part, the function of the courts.
Legally, an allegation is the assertion, claim, declaration or statement of a party to an action, setting out what he or she expects to prove. If the allegations in a plaintiff's complaint are insufficient to establish that the person's legal rights have been violated, then the case may be dismissed.
Proof is a horse of a different color. It is the establishment of a fact by the use of evidence. Proof is anything that can make a person believe a fact or proposition is true or false. It is distinguishable from evidence in that proof is a broad term comprehending everything that may be adduced at a trial, whereas evidence is a narrow term describing certain types of proof that can be admitted at trial.
Evidence is any matter of fact that a party to a lawsuit offers to prove or disprove an issue in the case. It is a system of rules and standards that is used to determine which facts may be admitted, and to what extent a judge or jury may consider those facts, as proof of a particular issue in a lawsuit.
OK, one final concept before we knit this all together and that is credibility.
"Credibility" is properly defined as "believability." The major legal application of the term "credibility" relates to the testimony of a witness or party during a trial. Testimony must be both competent and credible if it is to be accepted by the trier of fact as proof of an issue being litigated. "Competent," in this context, means information that proves a point at issue in a lawsuit. Competent evidence is admissible evidence, in contrast to incompetent or inadmissible evidence. In lay terms, credibility can be thought of as considering the source and likelihood that what is being said is true.
Anyone can make an allegation. To prove it is another thing.
I am cognizant, too, that the rules, winches and levers that move the machinery of law aren't necessarily the same as those that guide discourse and conduct outside of the court. What I'm saying is simply this: Allegation may be related to fact or may not. And the way you get there is by proof. The way you access proof is, at least in part, in the credibility of the accuser and the proof he or she may offer.
While my sympathies lie with the accusers, and I believe the #MeToo movement has been too long in coming, the momentum gathered by it should not sweep away in one bold stroke the presumption of innocence that is at the bedrock of our democracy and our system of laws. Before leaping to conclusions, one must coldly scrutinize the facts.
Just because he or she said so doesn't make it so. We would be wise to keep that in our sights.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, email@example.com.