Vail Law column: What exactly is ‘proof?’ |

Vail Law column: What exactly is ‘proof?’

What is “proof”?

That question came up recently in a discussion with a friend.

We were talking about a he-said, she-said instance where there was little or no direct or circumstantial evidence. In other words, all there were the “he said” and the “she said” versions of events. And my friend asked me, “Is that even proof?”

Permit me to keep you — my friends — hanging for a second to ask this question, “What is air?”

“‘Proof’ 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.”

“Air is … ah …”

It seems easy at first, but then it gets a little complicated. We all know air when we don’t see it and don’t feel it when we breathe it, and don’t taste the air or smell the air itself. What we know — or maybe think we know — are the circumstances surrounding “air.” Without air, our lungs wouldn’t fill when we expanded them, and when the wind blew, there’d be nothing to push around. Without the air, what would clouds stack upon and help illuminate the sky when the sunset thrusts against them?

But air itself? Well, that’s a little tougher. We know air only by what’s related to it.

And if you’ll allow me, “proof” is sort of like air. We know it only by relation.

So, I said to my friend, “Proof is whatever the jury believes.” She glazed over as I said, “Evidence is easier. Evidence basically comes in two flavors; testimonial and physical. ‘Testimonial’ evidence is what someone says — ‘I saw him poke the bloke in the nose.’ Physical evidence is everything else — the bloody nose after the poor bloke’s nose was poked.”

“So what about proof?” my friend asked me.

I resorted to the dictionary.

I said, “The legal dictionaries say that proof is the establishment of a fact by the use of evidence.” She gave me a “now we’re getting somewhere” look, but then I ruined it. I went on, “Proof is anything that can make a person believe that a fact or proposition is true or false.”

“That’s from the legal dictionary?”

I nodded earnestly and forged on. “Proof,” I said, “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.”

I thought I was losing her, but then a light went on. “So,” she said, “if I say so-and-so did such-and-such, that’s proof?”

“It could be.”


“If the jury believes you.”

“So if I say something and the jury believes me, then that makes it true?”

“No, not exactly. Only what’s true is true, but what a jury believes is based upon what it believes is true based on what it takes as proof.”

“Like O.J. Simpson?”

“Let’s not get into that.” I smiled. “I’ve only got 800 or so words here.”


“Proof,” I said, “is the employment of a bit of evidence to try to establish a fact. If, say, a bloke gets poked in the nose and you present a bloody shirt to the jury, that could be proof that he got his nose poked.”


“What if other evidence was presented that showed the blood on the shirt was not his type? What if it couldn’t have come from him?”

“Then,” she started slowly, “it couldn’t be from him being punched in the nose, right?”

“It goes to credibility,” I said. “Whether evidence is credible — whether it can be supported, whether it meets the smell test — determines if the ‘proof’ offered is sufficient to support the particular fact.”

“So the jury weighs and balances the evidence that’s offered and they figure out what’s ‘proof’?”

I said, “It’s sort of like the air. You can’t see it, smell it, or even feel it. But something is filling up your lungs when you breathe. So by relating evidence of something filling up our lungs, we deduce that air must be the culprit.”

She was less satisfied with this conclusion than I was.

“Back to the he-said, she-said.”


“The story that each of them tells — even if different — is proof?”

“If,” I said, “the jury believes it, that makes it so. The jury will consider it as support of the particular fact.”

“You went to how many years of school to figure this out?”

“Let’s not go there,” I recommended.

Sometimes, this stuff is like trying to wrestle your way out of a corn maze.

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,

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