Tuesday, November 3, 2009



Earlier this week, I read about Dominic Carter, a disgraced New York TV anchorman. Last year, authorities charged Mr. Carter with domestic abuse after his wife complained that her husband tried to strangle her during a fight. She later recanted her story, claiming that a mysterious "day laborer" was the assailant, not her husband. That did not faze the prosecutor. He proceeded with the case against Mr. Carter.

Mr. Carter appeared in Queens County court to answer the charges last week. In addition to flatly denying that he "had done anything wrong," he begged the judge to dismiss the case because he was "too important" and had "many friends in New York State government." He dropped several names, including Judith Kaye, the Chief Judge of New York's highest court. The judge was flabbergasted, admonishing Mr. Carter: "Don't drop names in here! You know better than that!" She did not dismiss the case. Mr. Carter's employer publicly condemned his conduct and appeared ready to fire him.

Mr. Carter decided to fly to Kansas City after his hard week back home. While waiting to take off, he stood up and made his way toward the restroom. Although no one exactly knows what happened next, a flight attendant screamed: "I want this man off the plane. He tried to assault me." Mr. Carter vigorously denied the accusation, explaining that he "must have bumped into her" while "bending over to tie his shoes." In any event, the flight attendant won the debate and Mr. Carter was ejected from the plane.

Police arrived to investigate the complaint. They determined that the flight attendant caused the altercation. They did not file charges. Mr. Carter took the next flight without incident.

I recount this story because it made me think about proving things. Evidence law represents our legal system's attempt to inscribe past events with "truth." I have written many times that it is impossible to know "the truth" about anything without being personally present to perceive it with our own senses. Yet we must rely on reports to formulate our beliefs about almost every event in our lives. We cannot sense everything that happens on earth. So we must put our trust in stories. Evidence law tries to assign credibility to stories. It also tries to screen out information likely to confuse the truth rather than find it.

Consider Mr. Carter's relatively banal story. The question is "what happened on the plane as he walked down the aisle?" Did he "deliberately assault" the flight attendant? Or did he really bend over to tie his shoes? Was it an accident? How do we know? We certainly weren't there. I read about the conflicting stories in the newspaper. How, then, can we satisfy ourselves about "what actually happened?"

Let's suppose the authorities decided to put Mr. Carter on trial for assault. To prove assault, the State would have to show that Mr. Carter intended to touch the flight attendant in a harmful or offensive way, and that he did touch her in such a way. From a philosophical standpoint, it is extremely difficult to prove intent, because intent exists solely in another person's mind. When threatened with punishment, a person rarely confesses to what he "actually intended to do," so evidence law requires us to look to external factors to "infer" intent. In other words, we must look to observable facts (ie, behavior, words) to conclude an unobservable fact (the actor's intent).

Mr. Carter's defense would depend upon his ability to show he did not "mean" to offensively touch the flight attendant. That is an intent defense. But to prove his intent, he would have to point to external factors. The best way to do that would be to call witnesses who directly perceived the event, preferably from a close distance. They could say what they saw: Did he slap the woman? Did he raise his arms in a threatening way? Did he "look angry?" Did it "look like he meant to hit her?" These are visual perceptions, and they carry the most weight when attempting to convince a listener to adopt "the truth" about a particular event.

But what about words? We can correctly infer a person's intent based upon his verbal conduct. What people say (and how they say it) can lead us to guess what they feel, intend and think. Still, whenever words enter an evidence question, the analysis becomes much more complicated. Everyone knows the word "hearsay," but fewer know the legal definition. In popular understanding, "hearsay" simply means "reported speech from someone else." In evidence law, however, it has a much more technical meaning. It means any "out-of-court statement offered to prove the truth of the matter asserted." See Federal Rule of Evidence 801(c). "Statements," in turn, mean "oral or written assertions or nonverbal conduct of a person, if intended by the person as an assertion." See Fed. R. Evid. 801(a). Applying these definitions, we see that even the defendant's own words can be hearsay if he repeats them in court. In short, hearsay does not have to come from "someone else," nor does it even have to be verbal.

This introduces a serious problem in criminal cases in which the defendant tries to explain what he intended to do. At the same time, the prosecution has an advantage over the defendant because another evidence rule permits a "party-opponent" to introduce an "opposing party's statement" against him. See. Fed. R. Evid. 801(d)(1)(A). This means that the opposing party here (namely, the prosecutor) could use Mr. Carter's statements against him, but Mr. Carter could not use his own statements to defend himself. For example, if Mr. Carter wanted to prove that he said "I was just bending over to tie my shoes" after the flight attendant accused him, he could not testify that he said it because it is "hearsay." But if the prosecutor brought in a witness who said Mr. Carter exclaimed: "Get outta my way, biatch" on his way down the aisle, it would be fully admissible against Mr. Carter as a "statement by a party-opponent."

This is a bizarre result. It almost seems unfair. After all, shouldn't people get to say what they said on earlier occasions in order to explain themselves? When the question involves individual intent, the individual is really the only one who can confirm or deny it. Yet evidence law turns away from this "best source" because it presumes that accused individuals will not tell the truth.

Thankfully, evidence law offers another way for Mr. Carter to get his statements before the jury. Although he could not testify that he said: "I was just bending over to tie my shoes" after the flight attendant accused him, a different witness could. Federal Rule of Evidence 803(3) provides an exception to the hearsay rule for statements relating to the "declarant's then-existing state of mind," including their "intent." In this case, if a nearby passenger heard Mr. Carter say: "I was just bending over to tie my shoes" immediately after the flight attendant screamed at him, it could be admitted to show that Mr. Carter did not intend to harmfully touch the flight attendant. It would not be hearsay because the defense does not offer it to prove the "truth" that Mr. Carter actually tied his shoes. Rather, it would offer the statement to prove the declarant's (ie, Mr. Carter's) then-existing mental state: Namely, that he did not intend to offensively touch anyone.

I mention all this to show how difficult it is to prove things. It is even more difficult to prove them according to technical evidence rules that prohibit people from explaining what they actually said, yet permit others to use their words against them.

Do all these rules bring us any closer to the "truth?" I don't think so. In the end, ascribing truth to a story depends as much on available evidence as it does to pure intuition. In my view, lawyers make a colossal philosophical blunder when they think they have a greater claim to "uncovering truth" because they apply technical evidence rules. No man-made rule can change the fact that human beings have limited senses. When it comes to believing something that allegedly happened outside those senses, one man's guess is virtually as good as the next man's.

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