Source of article The Advantage Blog - Tsongas Litigation Consulting.
This is peril. Not the kind of “mortal peril” the young Weasley children faced from time to time, but the kind of client relations peril that comes with wading, even ever so slightly, into one of the most polarizing issues, at one of the most polarizing political periods in our society. So, I plan to be delicate, avoiding opinion about the process or outcome of the investigations of possible collusion between the Trump campaign and Russian intelligence. What I want to do is focus on the nature of “evidence” and “proof,” pointing out the use and misuse of the concepts of “evidence” and “proof” in the public sphere of media discourse. I want to use this discussion as a springboard to understand and inform the approaches trial advocates can take to enhance the force of their closing arguments.
Let me start with a few caveats. Again, to repeat, this is not intended as an opinion on whether there was or was not collusion. Second, this article comes from the perspective of a trial consultant who specializes in civil trials, not criminal ones, although the lesson could be applied through analogy to criminal trials. Third, the insights come not from any grand scientific study of juror behavior, but come from the perspective of a student (and former professor) of persuasion and argument, and from over 15 years of direct observations of juries, shadow juries, mock juries, and post-verdict interviews.
Equivocation of “Evidence” and “Proof” in Much of the Talking Head Commentaries
We are witness to an intense partisan struggle over the current investigations into allegations of collusion between the Trump presidential campaign and Russian intelligence. Unfortunately, the debates in short news segments do not seem very productive. This is partly because too often each “side” in the discussion is advancing talking points designed more to control the headlines than to encourage more thoughtful analysis and understanding of the issue. The messaging is also often more directed to feeding ensconced positions and bolstering extant views, rather than modifying them. But one thing that has caught my attention is the repeated equivocation between the concept of “evidence” and the concept of “proof” in the debate. We have seen many commentators demand that their opponent in one of the talking head boxes on the television “show them the proof” of collusion. The President himself tweeted the following on June 16: “After 7 months of investigations & committee hearings about my ‘collusion with the Russians,’ nobody has been able to show any proof.”
The claim is that there is “no proof” of collusion. What is going on rhetorically, however, is an incorrect equivocation of evidence and proof. In the most simple terms, taking me right back from my lectures in Argument 101, “evidence” is defined as a form of support for a claim that one advances in the effort to persuade another that the claim should be accepted. Again, in very simple terms, the evidence may be “direct” or “circumstantial.” “Proof” is not evidence. Proof is a standard, a threshold marking or demarcating a condition between two realms. “Below” the threshold line of proof is the realm where a claim has not been proven by sufficient evidence. What lies “above” the threshold is the realm where proof is reached and a claim is therefore accepted.
Even one of the most dogged left-wing critics of the Trump administration, Rachel Maddow, concedes that it is possible the Trump administration knew nothing of the means and methods of Russian hacking of the DNC and that there was no quid pro quo. Certainly she probably has a much different view of the quantity and weight of the evidence than Sean Hannity, but the point is that the ultimate conclusion is not a question of certainty, but a debate about the degrees of probability along a continuum between certainty of “no” and the polar opposite certainty of “yes.”
You have seen pundits argue that there is “no conclusive evidence of collusion.” They are correct, in the sense that Conclusive Evidence is defined as “evidence” that is not contradicted by any other evidence. It overwhelms any other evidence to the contrary. Its strength leads to certainty of conclusion.
So, when the charge is posed that there is no “proof” and that someone must “show them the proof,” they are correct, in a sense, on the first claim, but the second charge misrepresents the nature of proof. To be clear, there is “evidence” of collusion. Now, this is where I need to be careful. I am making NO comment on the weight or quality of the evidence. I am making NO comment on the quantity of the evidence. One can argue that statement by Donald Trump, Jr. that “Russia makes a fairly disproportionate amount of our assets” is evidence of a financial connection between the Trump organization and Russian businesses or individuals. One could make the argument the lack of disclosures of meetings between members of the campaign and Russians is circumstantial evidence of collusion. But, there is nothing here about the weight of the evidence, the significance of the evidence to the threshold of proof that must be met before the claim is to be accepted.
But, when the talking head is saying “show me the proof” they are, if applying the concept correctly, saying “Show me if the threshold has been met! Show me how the evidence is sufficient to conclude there has been collusion!” What pundits are saying in response to “evidence” of collusion is that the known evidence in the public sphere lacks “weight,” or perhaps that there is no “smoking gun” piece of evidence that in and of itself meets the threshold of proof.
The burden of proof, no matter what context, is certainly on those who argue that there was collusion. The particular threshold of “proof” is different depending on the circumstances. There may be one threshold in the court of public opinion, and likely there would be little agreement on what that threshold should be set at, which is a fundamental problem in any useful public debate about this entire issue. There is a very different threshold of proof in a legal context. The threshold in a Congressional consideration of the issue would be different. The intelligence community has its own standards or thresholds, which, for example, include levels of confidence assigned to the conclusions they make. In a civil trial the standard or threshold of proof most often is “more probable than not,” or in other claims, by “clear and convincing” evidence.
Advocacy: Evidence and Proof in Closing Argument
So, how does all of this assist the trial advocate? Jurors struggle with these same issues in each and every deliberation. But in their context, the trial advocates have provided them with a great deal of evidence and the court has supplied them with legal instructions to assist them in understanding the burden of proof, and the nature of different kinds of evidence. But that is often not enough for them to satisfy their psychological need and want for order, clarity, understanding, and direction. They are left to their own devices to understand how to organize evidence to determine if the burden of proof has been met.
Many times plaintiff-oriented jurors focus on a singular element of evidence, giving it presence above and beyond the other evidence presented in the case. For them, at times, this piece of evidence is sufficient to meet their idea of the proof threshold. Many times defense-oriented jurors demand “smoking gun” evidence as the standard of evidence to meet the burden of proof, downplaying the pattern of evidence a plaintiff trial advocate has presented.
Trial advocates can advance their cause by developing specific means to assist jurors in assessing the quality and quantity of the evidence. Discussions about the evidence and its significance too often fail to focus on means, mechanism, and deliberative norms by which jurors can proceed to “weigh” the evidence, evaluate it vis-a-vis other evidence, stack it and measure it against other evidence. What is “more probable than not,” depending on how the trial advocates argue it, or through omission concede the other side’s framing of the issue, can be a very “low bar” or threshold of proof.
We have developed many means and mechanisms at trial strategy and trial tactics to better arm and motivate jurors to be more effective advocates for our client’s position. I cannot go into all of them, based on the length of this blog (already too long). But, a few general approaches should illustrate the point.
In our Shadow Jury projects we interview our shadow jurors each night in part to understand how they are “weighing” certain evidence they observed in the actual trial. Some evidence they may dismiss as tangential, irrelevant, or questionable, as in doesn’t “ring true” given the other evidence they have heard. This often helps us provide the trial team direction about how to characterize evidence in the closing argument. Asking jurors to characterize the weight of evidence in “physical” terms can help. For example, “In your opinion, is the August 12th email heavy, like granite, or light, like Styrofoam? How so?”
They tell us how much “weight” they put in evidence and why, informing the way to characterize the evidence. Evidence “blocks” can be stacked and weighed against each other. Such insights can even be illustrated on the Scales of Justice, as the evidence boxes are stacked and visually depicted as heavy or light through visual design – a form of visual advocacy to compliment the rhetorical strategy. The bullet point reasons why each box is either “heavy” or “light” are offered, arming jurors to articulate the relative significance of evidence.
Another strategy is to provide an impression of the weight of the evidence by situating evidence in a core/periphery model. This strategy may be a way to illustrate the weight of evidence by its degree of relevance. Evidence situated near the core or center of the question weighs more. Peripheral evidence, evidence situated away from the core or central question, is of less weight and merit. Of course, one should not just place the evidence in relative distance from the core, but should provide compelling reasons why the placement is apt.
A simple, but highly effective method is simply to situate types of evidence in categories or buckets of “What We Know,” “What We Are Unsure Of,” and “What We Can Dismiss as Impossible.” Simply providing mechanisms of classifying the importance of certain pieces of evidence can be an immensely useful means of arming and motivating jurors to understand one’s case and see the evidence the way the advocate wants the evidence to be seen (or weighed).
These are just simple visual and rhetorical strategies to help jurors evaluate and weigh the relative impact of different evidence they have heard in trial. It helps the jurors conceptualize how evidence, and patterns of evidence, relate to the level of proof needed to conclude the burden has been met or not. They are means by which the burden of proof can be framed to address juror’s misunderstanding of “more probable than not” — come talk with us about the specific ways we help defendants frame the burden of proof in closing arguments in civil trials.
In the short time and attention spans of media communication these days, such a methodical approach to assessing if the burden of proof has been met, whatever the standard is, is likely impossible. However, in jury trials, trial advocates have an opportunity to present closing arguments that instruct jurors how they should deliberate, categorize, and weigh evidence, and situate such evidence in a model that depicts what the burden of proof is and should be.
In our polarized political environment, it is unlikely that the conclusions that different institutions will make will be accepted by those with differing opinions of the matter. But civil jury trials are part of an amazing legal institution where there are strong norms and rules. Most jurors want to feel they are doing the right thing; following the law, being fair to all parties. They just do not often know how to do that. The trial advocate can give them direction. It seems, too often, what happens is akin to giving jurors directions to one’s house in 20 randomly ordered steps and then telling them that you will see them at 6:00pm because that is when dinner will be served. Then the advocate is upset when the jurors do not show up on time or to the right destination. Give them a verdict map, help them evaluate the landmarks to determine which ones are more relevant and useful than the others, and walk them through the means and steps to arrive at the conclusion you need for your client.
This all relates to the paucity of the contemporary political dialogue because the trial approach we discuss here seeks to first define the nature of what proof needs to be and how one determines whether it has been met or not. It seeks to avoid the equivocation between “evidence” and “proof” we are seeing in the media these days and guide jurors in the deliberation process and procedure.