The idea of “a preponderance of the evidence” or as “more likely than not” is used in civil cases. Another standard aside from that and “beyond a reasonable doubt” is “by clear and convincing evidence.” It’s difficult for most people to tell the difference between all these varying standards. These are fictions created by the law so that we can derive an unjustifiable sense of comfort that the fact finders are being put to a greater test in one situation over another. The idea is you may believe something probably happened yet if you don’t have a strong enough belief to believe what you believe you shouldn’t believe it.
I recall one instance that illustrates this. My office tried a case where the judge found by a preponderance of the evidence a defendant’s confession was voluntary. On appeal the Massachusetts SJC changed the standard from beyond a preponderance of the evidence to beyond a reasonable doubt. It sent the case back to the judge to make his decision under the new standard. The judge who had believed the confession was voluntary by a preponderance of the evidence examined his mind and decided he could not do so beyond a reasonable doubt. It was a marvelous demonstration of mental gymnastics that made us smile.
It seems that most people will believe the gal hit the lad over the head with the beer bottle or she didn’t. They usually don’t say I believe she hit him over the head by a preponderance of the evidence but have a reasonable doubt she did it. I’d suggest in everyday life you either believe something or you don’t.
Aside from having these greater and lesser degrees of certainty, there’s also what’s called the burden of proof. In other words, one side or the other has to produce the evidence to make you reach the conclusion it wants. In a criminal case the burden of proof is on the State to prove you committed the crime beyond a reasonable doubt. A defendant doesn’t have to do anything except in some states where the defendant raises the issue of self-defense or insanity the burden shifts .
I’m writing about this because when a judge makes a factual finding he does the same thing as any other person. In the case of the red light where each party blames the other and there is no other evidence, the judge has no greater insight into it than a jury. How then is a decision made as to what is the truth when it is in dispute? You are supposed to use your background, experience, common sense and whatever other special attributes you may have to examine the full situation and arrive at a conclusion. But how does that help in the red light case? You’re also supposed keep in mind the burden of proof is on one side and if it has not met the burden then you shouldn’t decide for that person.
In the red light case it’d seem you’d be unable to arrive at any conclusion yet it is necessary that it be done. The fact finder will decide by all I’ve previously mentioned but some also by whether you dress or speak in an appealing manner, or whether one lawyer is liked more than the other, or how you parted your hair, if you have any.
Even though you were not at fault in the accident the fact finder could decide an attractive woman would never run a red light but a pot-bellied guy would probably do it. You’d lose.
We recognize this. We know mistakes are made. We’ve had people on death row who were innocent and guilty people acquitted. You all know that — so why am I mentioning it now.
It’s because I’m going to talk about Judge Wolf’s decision as I go along. I’d ask you to keep in mind that he can be the best judge in the world, intelligent, diligent and honest, yet he can be mistaken. In fact, it’s more likely a judge will be mistaken because unlike a juror he does not have 11 other people to act as a sounding board for his conclusions. Plus his background may be totally different from those he is judging and he just may not understand some things. In some situation he does little more than make a mental coin flip.
Throughout Judge Wolf’s decision he picks and chooses what part of Stevie Flemmi ‘s testimony to believe and much of Flemmi’s testimony consisted of him refusing to answer. He accepts some of what he says and finds he is lying in other instances. How much confidence would you have listening to a gangster who you know is lying to you at least half the time? Would you make a decision on what he said?
Judge Wolf tried to do this. I’ve shown in some places he is totally wrong. His error begets other errors. His findings have been followed and carved in stone. Yet some of them are plainly wrong.