Quantifiably Dumb

It had been generally clear over the years that the audience for Eugene Volokh’s conspirators were lawyers and law profs. Maybe that’s changed, or maybe that was never really the case, as non-lawyers with an interest in legal content read there as they do here, even if the posts are generally directed toward those with a functional knowledge of law.

That was why it was it was so shocking to read this paragraph in Eugene’s explanation of why Rittenhouse could be sued civilly for negligence.

Yes. A criminal acquittal doesn’t preclude a civil lawsuit out of the same claims. First, the acquittal resolves only that guilt couldn’t be proved beyond a reasonable doubt (requiring, say, a >90% confidence level); the standard for civil liability is preponderance of the evidence (which requires just >50%, or perhaps ≥50%, if the injury is easily proved and the burden is then shifted to the defendant to prove self-defense).

The answer to this question, of course, is too basic for an audience of lawyers, although given the number of lawyers who are twitting that acquittals can be appealed, this may no longer be true, so it is presumably directed at the general public. And when I took Eugene to task for his attempt to quantify “beyond a reasonable doubt” as “requiring, say, a >90% confidence level,” that was his rationale.

By “there” you mean quantifying the reasonable doubt standard? True, it’s likely unhelpful to try to do that in jury instructions, but I think it helps laypeople understand the rough difference between that, clear and convincing evidence (maybe >75%?), and preponderance (>50%).

In jury instructions, it’s not merely “unhelpful,” but flagrantly inaccurate and, in the event of a conviction, the sort of issue appellate lawyers drool over, provided there was a proper objection and it was preserved.

Preponderance, by definition, is easily quantified as it is, by definition, more likely than not. But clear and convincing? Beyond a reasonable doubt? It’s entirely understandable why Eugene, pedagogue that he is, wants to convert difficult legal concepts into easily digestible bites for the groundlings, but what this teaches is wrong in two ways, one more “technical” and the other more fundamental.

First, as Eugene noted, this would not be proper for a jury instruction. First, there is a whole lot of potential reasonable doubt in that last 10% that would, and should, preclude a conviction. If a juror is 99.9% certain of guilt, but that last niggling 00.1% is reasonable, then that’s enough to compel acquittal. The issue is whether the doubt is reasonable, not how much of it there is or what confidence level one estimates before shrugging off the balance of reasonable doubt.

And lest anyone see this as overly defense-lawyerish, or too pedantic, the jury instructions on reasonable doubt are a mess and always have been, as no one has ever found a viable way to explain the concept to jurors in such a way as to make clear that it’s not good enough to be mostly certain, whether the confidence level is 51%, 75% or 90%. The law establishes no quantification for reasonable doubt for a reason: if there are ten reasons for doubt and the evidence satisfied nine of them, the defendant must be acquitted. Same if there were 100 reasons and 99 were satisfied. And on and on. It’s not a math equation.

Which brings us to the more fundamental problem, as Eugene uses quantification not to be technically accurate (as would be helpful in a jury instruction), but to convey an idea to non-lawyers that an acquittal, determined by application of the higher standard of beyond a reasonable doubt, does not preclude a civil finding of liability under the lesser standard of preponderance of the evidence.

Eugene Volokh is a law professor, and a very highly regarded voice on First Amendment issues. He’s earned that respect, although one needs to be cautious about confusing his expertise with irrefutability. Some people take Eugene’s views as the final word, and should he end up on the Supreme Court one day, perhaps that will be the case. But for now, it’s still his considered opinion, as worthy as it may be.

This isn’t raised to smooth over what’s coming, but to note that when Eugene offers instruction as to the law, a lot of non-lawyers (and a few lawyers as well) take it for gospel. When you have that level of influence, you have to be cautious not to make a representation of convenience that is, technically, completely wrong. And that’s why his quantification of beyond a reasonable doubt was so problematic.

Much as people will argue in response to the concept that people are presumed innocent until proven guilty with the glib “well sure, but that’s just some rule in court, not in real life,” they miss the point that this is a principle that became embedded in the law, not some legal technicality to be ignored outside the jury box.

By “explaining” law in ways that people can more easily understand and digest, we are simultaneously teaching them that the rule is merely “technical” and need only be correctly understood and respected when inside a courtroom. Outside, we can just make up whatever stuff suits our convenience, like putting a percentage, whether it’s “say, a >90% confidence level” or any other number.

Those people to whom Eugene is speaking, to whom he’s explaining the basic concept that a civil case uses a lesser burden of proof than a criminal case such that the latter doesn’t preclude the former, are our jurors. They are the people telling others on twitter that what beyond a reasonable doubt really means is 90% confidence. They are the lawyers who don’t practice criminal law and believe that when Eugene Volokh says what the law is, that’s good enough for them.

And this is why so many people, even lawyers, have such a poor grasp of the fundamental principles of law, and shrug them off at their convenience when they get in the way of their desires. Much as I appreciate the use of shorthands for convenience, wrong is still wrong, and quantifying beyond a reasonable doubt is very wrong.

12 thoughts on “Quantifiably Dumb

    1. Jesse

      “Maybe that’s changed, or maybe that was never really the case, as non-lawyers with an interest in legal content read there as they do here, even if the posts are generally directed toward those with a functional knowledge of law.”

      You’ve made us laymen smarter about law.

        1. Keith

          I’m not sure how much I’m any smarter, but I’m certainly aware of a lot more I don’t know.

          To the topic: I get what Prof. Volokh was trying to do here, and I understand why you took him to task for it. But I also appreciate both (for what the posts say and what they teach about the limits of expertise outside the scope of where you practice).

  1. Dilan Esper

    I don’t see why Prof. Volokh even needs to get into percentages to make his point. Just say reasonable doubt is a stricter standard than preponderance. Because it is. And therefore, there is clearly some class of people who are not proven guilty beyond a reasonable doubt but who nonetheless would be found guilty if the standard were preponderance. That’s all you need to say. No mathematical definition of reasonable doubt necessary or appropriate.

  2. B. McLeod

    The notion of a negligence suit on the civil side is also odd. I don’t think there was any evidence of unintentional conduct on the defendant’s part, or any indication that he shot anyone he wasn’t aiming at. So plaintiffs would be looking at intentional torts and civilly retrying the self-defense issues in that context. Unless they can get someone to take it on contingency or pro bono, it will cost more money than it’s likely worth, and their best case scenario is being able to hound the defendant for any assets he accumulates during his life. Maybe a few of our batshit impassioned colleagues would take this on, but I doubt anyone very competent is considering it.


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