Robbins: Circumstantial evidence?
One good thing about this presidency is all the teaching moments it affords.
Following last week’s column regarding the constitutional authority which makes the president the commander in chief, I heard from a friend and an acquaintance who took exception to me citing the recent article in The Atlantic which claimed the president referred to those who served as “suckers” and those who were killed in the line of duty as “losers.”
What I said, specifically, was that The Atlantic published an “alleged account” claiming that the president said those things.
One of my correspondents — a friend with whom I frequently disagree but deeply respect — said the “…only thing I found objectionable at all was your use of the words suckers and loser; No one knows what was actually said or not said; but when an article uses unnamed sources in such a derogatory manner about a sitting president in an election year as the Atlantic did, one would be foolish not to at least question its veracity, and candidly, its appropriateness.”
This is certainly fair game. To question the veracity of anything unless you heard it with your own ears or saw it with your own eyes is the essence of critical analysis and I applaud my friend for so observing.
There are, however, at least in law — and I suspect in life — two kinds of evidence; direct evidence — that which you experience with your own senses — and circumstantial evidence — that to which reasonable conclusions lead.
All kinds of evidence
Let’s take a deeper dive.
As our jumping-off point, let’s consider what exactly is “evidence.”
Simply, “evidence” is a fact that tends to prove or disprove an issue in a dispute.
If, say, I want to prove that your car bashed into mine, some tidy pieces of evidence might be police photos of the dented cars, the sprinkle of shattered glass, the skid marks angling towards the point of impact, and the statements of witnesses. Each of these would tend to prove — or disprove — that a collision had taken place and might point to who may have been at fault.
“Direct evidence” is evidence in the form of testimony from a witness who actually saw, heard, or touched the subject of questioning. “I saw with my own eyes the blue car cross the center line and smash into the silver car. I smelled the rubber burning as the blue car hit its brakes, then I heard the collision when he couldn’t stop, saw the people in both cars jolt forward, and saw the glass spray all over when the two cars hit.”
Direct evidence, if believed, proves the existence of the fact in issue without inference or presumption.
Circumstantial or indirect evidence is more attenuated. It consists of information and testimony presented by a party that permits conclusions that indirectly establish the existence or nonexistence of a fact or event that the party seeks to prove.
Circumstantial evidence is distinguished from direct evidence in that inference or presumption is required for the purported evidence to be believed. It requires inference and relates to a series of facts other than the particular fact sought to be proved. The party offering circumstantial evidence argues that this series of facts, by reason and experience, is so closely associated with the fact to be proved that the fact to be proved may be inferred simply from the existence of the circumstantial evidence.
Let’s take an easy example and then apply the theory to last week’s column.
Say you see it snowing. That you saw it snow is direct evidence. Say you wake up to snow on the ground but slept through the storm. It is a reasonable inference that it has snowed and that reasonable inference is circumstantial evidence that it snowed.
Now in the case of Mr. Trump, while neither you, my friend, nor I were “in the room where it happened,” as The Donald has a habit of making denigrating statements and, in particular, statements denigrating military heroes when he’s in a pique (think John McCain, Capt. Humayun Khan, and others), it does not strain credulity to think that Trump may, in fact, have uttered what he is alleged to have said. The circumstantial evidence — that he has said other such things — points in that direction and tends to support the author’s claim that he has it on good (albeit anonymous) authority and that he is content in his sources’ credibility.
In any event, I ain’t saying that he did. All I am saying is, based on his past comments, I would be less than shocked if the statements attributed to him were true.
Should we “at least question its veracity?” Absolutely. But should we dismiss it out of hand? If the shoe fits and others of its ilk have too, maybe we should try it on to see how well it suits. The past may, in fact, be prelude.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926.4461 or at his e-mail address: Rrobbins@CELaw.com. His new novel, "How to Raise a Shark (an apocryphal tale)", is available at Amazon.com.
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