Rejecting Doubtful Evidence
The presumption of evidence is being touted as uniquely American or a founding tenet of Western thought. It is important indeed to Western jurisprudence, but its provenance spans thousands of years. Wikipedia notes how the Romans expressed it: “ei incumbit probatio qui dicit, non qui negat” (“the burden of proof is on the one who declares, not on one who denies”).
Even in Islam, a similar principle is held: “Avert the prescribed punishment by rejecting doubtful evidence.” Imam ibn Hajar’s Bulugh al-Maram, Hadith 1290.
Do such notions apply outside of the domain of law? Should they? Yes to both, I strongly assert.
What’s the problem?
If the idea is as widely accepted as the above suggests, what is the problem? The problem is that the presumption of innocence does not apply in socialist and other tyrannical regimes, nor in tyrannical monarchies and dictatorships. For example, in the Union of Soviet Socialist Republics, Lavrentiy Beria (Putin’s predecessor) famously said: “Show me the man and I’ll find you the crime.” The Nazis (National Socialist German Workers’ Party) of Germany similarly used the presumption of guilt (and no trial needed) to get rid of inconvenient people by the millions. To this day, the expression “Germanic presumption” refers to the presumption that an accused person is of course guilty.
Saddam Hussein’s “Socialist Republic of Iraq” (it’s been renamed), Cuba, Venezuela, China, North Korea, and the rest of a dozen socialist tyrannies and many other dictatorships all find the presumption of innocence troubling. They need free reign to jail, torture or kill people they perceive as threats to their ends, and they have the power to make this stick.
In the United States, we still prize the presumption of innocence, though we do great harm to it through “trial by media” and other non-judicial actions. Leading, national Democrats are now increasingly insisting that it no longer applies, and have thus stepped onto the path of tyranny.
But for the rest of us, outside of a court of law, how should we consider the concept of “doubtful evidence”? Let’s look at three cases in the news now, and see if the evidence is doubtful, substantial, or confessed.
Cory Booker
In Senator Booker’s 1992 Stanford column, he describes (and thus admits to) a teen aged groping of a drunk female friend:
New Year’s Eve 1984 I will never forget. I was 15. As the ball dropped, I leaned over to hug a friend and she met me instead with an overwhelming kiss. As we fumbled upon the bed, I remember debating my next “move” as if it were a chess game. With the “Top Gun” slogan ringing in my head, I slowly reached for her breast. After having my hand pushed away once, I reached my “mark.
This is truly a confession, and it raises a very high probability that he was guilty of this sexual assault. It’s not 100%, because there are people that falsely confess, and people (especially men) who brag of sexual conquests they never achieved. In this case, it is certainly fair to adjudge Booker as guilty of this crime. Interestingly, had he actually been prosecuted and convicted of it, the records would have very likely been expunged because of his age.
Keith Ellison
Here, there is evidence is more substantial. It includes a 911 call from one former girlfriend in 2005 to medical records from a second girlfriend in 2017 and multiple witnesses to her alleged abuse at the hands of Ellison.
This is fairly strong evidence, with contemporary law enforcement and medical records and witnesses. Still, it is not completely damning. The medical records are not about injuries caused by violence; they relate the patient’s abusing relationship but it is her own story with no other direct evidence. The 911 call from before does not indicate direct violence (though she felt threatened), though she does indicate an assault on her (or his?) mother. The witnesses do lend credibility, but they are relatives of the girlfriend and thus motivated to tell/spin the story a particular way.
In short, this one is open, and really needs to be pursued judicially without more. Clearly he’s had two very unhappy relationships, but that alone is not a crime. I understand now that this is being pursued, but it is likely to be a partisan, buddy pursuit which may not be satisfying. For now, he still carries the presumption of innocence.
Brett Kavanaugh
Here’s the largest one in the news, of course. Famously, the allegation consists of a completely uncorroborated assertion from 35 or maybe 36 years ago, and the fact that even the year isn’t known, let alone the place or other participants, drains this story’s already thin credibility. Every person Christine Blasey has named as a witness, including her best friend at the time, denies her account. And she has recently demonstrated just how terrible her memory is, and the fact that she told her story to no one for three decades.
There’s now an FBI investigation under way. But who will they talk to? Each of the witnesses named by Blasey has already stated in sworn affidavits that they cannot back her assertions. They can ask “are you really, really sure?” They can ask the polygraph operator why he performed such a non-standard, essentially useless procedure. Maybe they can illustrate the tremendous partisan biases of Blasey, her attorneys, handlers, and advisers. They can find out why she lied under oath about being a psychologist. But those things don’t directly refute her story.
Against this doubtful evidence are the assertions of all of those, male and female and including former girlfriends from the same time period, who swear that Brett Kavanaugh is nothing like this, and that his behavior toward women was and is exemplary. What does he get for such an extraordinary life? USA Today ran an article alleging that he was a pedophile. “Trial by media” indeed.
Giving Christine Blasey every benefit of the doubt, we can only conclude that - whatever happened to her - through her actions over more than a third of a century she has forever lost the opportunity to do anything about it. Unless … I understand that two men have volunteered that they, not Kavanaugh, are who Blasey is talking about. Very strange.
And Brett Kavanaugh is still innocent, and rightfully presumed so.
===|==============/ Keith DeHavelle (@DeHavelle)
Originally published at DeHavelle.com. You can comment here or there.