FACTS DO NOT NEED TO BE OFFICIAL; THERE ARE NO "REAL FACTS"

OESTERHOUDT STRIKES

I went to Starbucks this morning to buy a coffee. I wasn't really thinking about anything. I was groggy and I was battling a cold. But as I waited for the barista to serve up my venti bold, I overheard the man behind the espresso machine say to his coworkers: "Wikipedia is written by us. Those aren't real facts."

My mind immediately sprang into action. I really did not care about the man's opinion about Wikipedia. Everyone knows that you need to read Wikipedia with a grain of salt. Its reporting can be unreliable, just like any other source. But I took serious issue with his assertion that Wikipedia does not contain "real facts" because "people like us" write it, as if "regular people" are incapable of reporting "real facts."

I was saddened for two reasons. First, the barista's comment revealed the widespread--and servile--public belief that "facts" must flow from certain "official" sources. Second, it revealed the belief that "regular people" do not deserve credibility when they report "facts."

Let us begin with "facts." More than a year ago, I struggled to formulate a workable definition for "facts." Everyone thinks they know what "facts" are. They think "facts" are "things that actually happened." But it is impossible to really know whether something "actually happened" if you were not there to perceive it. Everyone else must rely on second-hand reports to form an opinion about "what actually happened;" and that opinion may not reflect what "actually happened" at all. Facts intertwine with belief; a person calls something "a fact" as long as he subjectively believes it to be true, even if it is not. A person's belief, too, is a "fact." It is a "fact" to say: "John believes that Mary robbed her mother." It is not necessarily true that Mary robbed her mother. But if John believes it, John's belief about it is "a fact."

Viewing all human existence as a whole, most "facts" are incredibly banal. It is a "fact" that I just moved my eyelid and that I just pursed my lips: I perceived these "acts" through my visual and tactile senses, so they are facts. Facts are rarely newsworthy, and almost never "the stuff of history." Yet many people mistakenly believe that "facts" must be "official." Like the barista, they believe that something is not a "fact" unless some reputable source reports it. To use the barista's term, only certain sources can present "real facts," not plebeian sources like Wikipedia.

What is a "real fact?" How does a "real fact" differ from any other fact? After all, a "fact" is any event, act or condition that is objectively verifiable and perceptible by the human senses. Your own emotional state is a "fact" at this very moment. Whether you're wearing blue jeans right now is a "fact." These are "conditions" and "acts" perceptible by human sense. The New York Times will never report these "facts," but they are still facts. Anyone can recount facts. As human beings, we all can recount our sensory impressions through memory and language. Put simply, the power to recount facts does not require a reputable press pass or an advanced degree.

Facts do not distinguish. There are only "real facts" to the extent that another person chooses to believe them. Source is irrelevant to the inquiry whether something is a fact. Source is only relevant to the question whether a reported fact is credible or reliable.

But the barista confused theses issues in a deeply troubling way. He not only manifested a belief that certain sources were not reliable. He also revealed a belief that certain sources cannot even report "facts" at all. According to the barista's logic, only reputable sources dispense "real facts." Sources like Wikipedia do not. Yet this is pure nonsense. Wikipedia definitely reports "facts." It reports "acts, events and conditions that are objectively verifiable and perceptible by the human senses." True, its reports might contain inaccuracies and falsehoods. But that is a danger inherent in all reporting. And in the end, "facts" are not about "what actually happened," but rather about "what we are willing to believe." Both Wikipedia and the New York Times face the same "factual" dangers every day when they report on matters that occurred beyond their writers' own sensory range. Both Wikipedia and the New York Times ask their readers to believe their words to be facts, no more. In that sense, they are exactly the same.

It is dangerous to believe that only certain sources have the power to dispense "facts." When people believe that only certain "official" reports deserve credibility as "facts," they disempower themselves. They yield their power to judge the truth for themselves by conditioning their belief systems on "official sources." The barista's comment revealed this servile dynamic at work. He demeaned Wikipedia because "regular people" write it, not "official sources." As such, he refused to even believe that it reported a single "real fact," as if any fact were more real than another.

Worse, the barista tacitly acknowledged his inferior station in our society's truth-creating hierarchy. Our society perpetuates the notion that truth can only proceed from certain "official" sources, like news agencies, universities, government offices, courts, churches and science labs. While those sources might deserve credibility in particular circumstances, the ultimate decision whether to believe something is entirely individual. And when people do not do their own research by investigating as many sources as possible, they subject themselves to dominant power systems. They accept some reports as "fact" solely because they flow from some exalted source, not because they verified the reports themselves.

We all can perceive the outside world. We know facts because we perceive them. We can report what we know. When we are honest, we know our word is the truth, even if we are not an "official source." We might even write an article about our knowledge in Wikipedia or some other popular publication.

Yet according to the barista's logic, we do not deserve belief. More substantially, we are not even recounting "real facts," even if we saw them with our own eyes. Only "official sources" can dispense "real facts," not regular people. That is not just weak. That is outright capitulation.

I wish more people would understand that we all can report facts as long as we can perceive and communicate. All facts are "real" as long as we believe them. And we do not have to be news agencies to deserve belief.

SEEING, HEARING AND REMEMBERING : PATHWAYS TO UNDERSTANDING

AN ESSAY

In ancient China, Confucius allegedly said: "Tell me and I will forget; show me and I may remember; involve me and I will understand." I had never heard this proverb before. It captivated me because it encapsulates many of my views about sense, speech, memory, experience and empathy. All these things relate to each other. And they all aim for one thing: Understanding.

What does it take to understand another person? Is it enough to hear a person describe problems with words? How about observing something firsthand? What is the most effective way to find understanding and empathy?

I have often written that we humans are subjective creatures. We know only what we sense. Unfortunately, we must also depend on language because our senses have a limited range. After all, we only feel certain about something when we perceive it directly. We would prefer to see something with our own eyes rather than hear about it in words from someone who saw it. We want to understand our surroundings and the people in our lives. And the only pathway to understanding is sense.

But it is a troubled pathway. For what can we really know, let alone understand? Knowledge is not the same as understanding. Knowledge is more banal than understanding. Knowledge means that we merely manifest a subjective belief that something is true because we perceived it. Yet understanding is more subtle. Understanding means that we not only know things, but we intuitively arrange our knowledge to tell a larger story. Knowledge is about details. Understanding is about narrative. Knowledge is just an actor. Understanding is the whole play. And we don't feel truly fulfilled until we really understand something: What good are isolated facts unless they tell us something more significant?

Confucius recognized that human sense opens the door to both knowledge and understanding. Yet he also recognized that there is a hierarchy in human sense. He says: "Tell me and I will forget," implying that hearing is a weak sense. How right he is. How often do we hear language and immediately forget what we just heard? It is difficult to glean knowledge from language, let alone understanding. It is incredibly easy to forget words. After all, words are a poor substitute for actual perception. But in many cases they are all we have to reconstruct our perceptions.

Sight is better than hearing. Confucius confirms this when he says: "Show me and I may remember." Here, he does not say he "will forget." If he perceives something visually, he says he "may remember" it. Again, Confucius is right. Sight links intimately to memory. Our eyes leave "visual impressions" on our minds long after images leave our present view. When we reminisce, we engage our "mind's eye." We attempt to re-see images that have long since disappeared from sight. We may not precisely remember what we see; indeed, with time, memory weakens. So in that way, Confucius correctly points out that we only "may" remember something after we see it.

And we see all the time. It is simply impossible to recall every single thing we visually perceive every day. Our memory works best only after we see something worth remembering, namely, something exciting, unusual, captivating or appealing. To a large extent, our own subjective desires color what we remember. If we are infatuated with someone, we remember how they look with great detail. We hang on their words and even remember what they say. Yet those subjective desires obscure other details. We don't remember many things we see because we are distracted with our love interest. We are not paying attention; our emotions cloud our perceptions. Thus, while sight may be a better way to acquire knowledge than hearing, we will never remember everything we see. There is just too much going on. We cannot know everything because our senses are imperfect.

But Confucius does not end his proverb with knowledge. He goes beyond. He ends with "understanding:" "Involve me and I will understand." Understanding is the ultimate goal; the proverb builds up to it. He does not equivocate here, either. He says: "I will understand."

What is going on here? And why is understanding better than knowledge?

Anyone can know facts. You must merely have functioning sensory organs to know whether something is hot, cold, smelly, coarse, green or blue. Some facts require complex sensory deductions and inferences, but deductions and inferences are just mechanical mental conclusions. Anyone with rudimentary reasoning power can infer one fact from another.

But understanding is more transcendent than that. Understanding combines knowledge with experience and intuition. It is one thing to know whether another person is sick, obligated, depressed or happy. It is quite another to understand a person who experiences those circumstances. Understanding requires a person not only to listen, observe and infer facts about another. It also requires him to put that knowledge in the light of his own experience and honestly try to feel what the other person feels. That is no easy endeavor. It takes time to assemble experience. That is why we tell young people: "When you're older, you'll understand." After all, how can you understand a complicated emotional problem if you've never experienced the emotions that make it a problem in the first place? If you do not have experience, you cannot truly understand. You can know, but you cannot understand.

Confucius was right to extol understanding as the "higher result" of knowledge. Why do we learn? Simple: So that we can understand. And why do we want to understand? Because understanding enlightens us. It makes the world more comprehensible. Understanding equips us to help others. Understanding counteracts prejudice and shortsightedness. Violence springs from misunderstanding and ignorance. It is hard to go to war with someone if you actually understand them.

Yet the fact that human beings constantly make war on each other bespeaks a sad truth: Understanding is not common. It is hard enough to acquire reliable knowledge through hearing and sight, let alone to understand larger implications about life. Most people never even acquire the knowledge they need to understand others. Understanding is impossible without knowledge. And only a patient person takes the time to obtain the knowledge needed to find understanding.

Who has time for that in our society? Who has time to listen? And most importantly, who has time to get involved with others in order to understand them? Confucius' proverb said that involvement results in understanding. That means living with others and experiencing their lives first hand. That means living with their problems, too. Involvement is not just a pervasive sensory journey; it also is an emotional one. When you involve yourself in another person's life, you eat, drink, sleep and breathe their problems. You sense what they sense. You obtain knowledge at an astronomical rate. And because you combine your experience with theirs, you necessarily will understand them. Once you understand them, you can empathize and comfort. Or you can turn away. In either event, you are enlightened. You are no longer ignorant.

But that takes a very long time. It takes a lot of energy. To achieve understanding, then, a person must not only have experience and knowledge. He must also be patient enough to involve himself in others' lives in a compassionate way.

Sadly, neither patience nor understanding are highly prized virtues in modern American society. Yet people yearn to be understood. In most cases, they must pay others to understand them. After all, time is money in the United States. No one has time to sit down and listen to another person's deepest thoughts, let alone get involved in their lives in a meaningful way. This is one reason why people are desperately unhappy in this country. They want to be understood, but no one has the time, patience or intellectual capacity to "learn" their woes. This leaves many people feeling isolated and forgotten. Even married couples never take the time to really understand each other.

I venture that understanding offers its own rewards. It is satisfying to understand others and to understand yourself. True, it takes time, learning and effort. But it feels so good to know another person understands you. By the same token, it feels good to give back by understanding others. It is an enlightened and compassionate way to live. Despite all the impulsions to the contrary, sometimes it is good to be patient in our society.

CELEBRATE BLACK HISTORY MONTH : DRINK HEINEKEN

OESTERHOUDT STRIKES

You might think that title is a joke. It isn't: I actually saw it printed on a New York City bus.

I thought I had seen everything in advertising. I thought I had cataloged every species of commercial dishonesty. But I should never underestimate commercial speakers: Their innovation knows no bounds. They push the limits every time. And in cases like this, they push straight into the surreal.

What the fuck does Dutch beer have to do with African-American identity and history? How does Heineken in any way relate to the black experience in the United States? How does Heineken reflect this country's poisonous racial legacy, or in any way symbolize it? I have no doubt that many African-Americans like Heineken beer. But would an average black man in America instinctively associate Heineken with black issues?

I can understand associating George Washington Carver, Crispus Attucks, Martin Luther King, Jr., Scott Joplin or even Snoop Dogg with Black History Month. All those men achieved prominence in American life through the decades. But Heineken? Where was Heineken during the Freedom Marches? Where was Heineken during the Civil War and Reconstruction? And where the hell was Heineken during the L.A. race riots?

Heineken is not African-American. It is not even a person. It is a beer. What role could it possibly have played in a Nation's development?

To suggest that blacks should celebrate their history in the United States by breaking open a Heineken is just asinine. After all, it was a Dutch merchant who brought the first African slaves to Virginia in 1619. That's not to say that Heineken reflects modern Dutch views about slavery. But the fact remains that the Dutch played a very dark role in the history of American slavery. In that light, it is especially perverse to suggest blacks should celebrate their history by drinking Dutch beer.

Heineken's ad is not just historically incongruous. It also shows just how little taste--or sense--most advertisers bring to their work. In this case, the advertisers did not ponder the embarrassingly weak connection between African-American history and Heineken beer. No, they merely identified a potential market (i.e., African-Americans), then matched their product to an important month in the "African-American calendar." Perhaps Heineken intended to forge a mental link between "African-American pride" and Heineken. Perhaps they wished to dupe African-Americans into believing that Heineken played a substantial role in their history. Maybe Dr. Dre likes Heineken. Maybe Duke Ellington drank it after his shows in the 1940s. Who knows?

Heineken simply concluded that African-Americans represent a "market:" Namely, a discrete body of potential buyers and sellers at a particular time and place. Any advertising that incites a market to spend money on the advertiser's product is worth the price. It does not matter if the message is crass, off-color, inappropriate, incorrect, counterfactual, counterintuitive, silly, ridiculous or just wrong. Those concerns pale next to the advertiser's mandate to generate profits.

In the end, advertising is not about consistency. It is not about respect, either. Rather, it is about implanting mental connections so that people spend money. In advertising, facts need not be accurate. Indeed, facts are not even necessary at all.

And taste? That's the least concern. If taste mattered, what self-respecting student of American history would dare to assert that Heineken beer has anything to do with the plight of African-Americans in this country? The thought is almost too embarrassing to entertain.

But that didn't stop Heineken from entertaining it. There is no shame--or dignity--in commerce.

That's another reason I'm not good at it. Damned ethics!

BIAS AND PREJUDICE IN THE PRESS : NO STORY IS EVER SIMPLE

AN ESSAY

I read the New York Post for two main reasons. First and foremost, it makes me laugh. The headlines are just flat-out funny. Its staff writes in a nasty, even satirical style to mock celebrities and other visible, well-off folks (invisible tycoons are different story because they are not visible). It also covers local New York City stories quite well. In all these ways, the Post is "populist:" It provides a laugh while dispensing relatively accurate local news.

Still, I read the Post for a second reason: To understand my intellectual opponents. While the Post's generic local coverage is populist and funny, its editorial spirit is neither populist nor funny. In fact, it is terrifyingly biased. That's not to say that the Post is any more biased than another newspaper. Every newspaper has a distinct perspective. But the Post's perspective is extremely right-wing. Bill O'Reilly writes columns in the Opinion section. 'Nuff said.

I like getting my news from as many sources as possible. I understand that human sense does not permit me to directly perceive too much in the world. So I turn to second-hand reporting to fill in the gaps. And because second-hand reporting necessarily reflects the bias of those who perceive things, I expect bias when I read newspapers.

For me, reading the news is as much about learning competing arguments as it is about learning "facts." As a philosophical matter, I have difficulty even understanding what a "fact" is, especially when I have no first-hand knowledge about the matter in issue. News reporting purports to relay "just facts." But in reality, its "facts" reflect interpretation and bias as much as any objective "truth." In that light, I suspect every fact I read in a newspaper. The only things I can confidently learn are the newspaper's biases and arguments.

And what luscious biases I find in the Post. To be fair, all American newspapers espouse a particularly virulent bias against Islam. But the Post takes shortsighted prejudice to a fantastic extreme. For almost a decade now, Americans have wondered why "Muslim extremists" attacked the United States on 9/11. I have always known why: Because Western commercial values--which treasure earthly existence over all things--clash fundamentally with Muslim teachings--which eschew earthly success for spiritual success. The fact that Western powers have long encroached on Muslim territory for commercial gain brings this tension in values to confrontation. In essence, the struggle between the West and Islam is a struggle between competing views of human existence: One grossly secular; the other grossly religious. Both are anathema to one another. Misunderstanding and acrimony are inevitable.

But you won't find that analysis in any American newspaper. Rather, you'll find self-righteous odes to the American way over the Muslim way. It's a colossal exercise in "us vs. them." No newspaper makes an effort to see the debate from the Muslim perspective. Heavens no; that would be treasonous. Instead, American newspapers--especially the Post--fan resentment against the "mortal Muslim enemy" by exulting American values over Muslim ones. In the process, they cast difficult questions in a simplistic light, using prejudice and stereotypes distort reality.

Consider two recent Post articles that illustrate these tactics at work. In the first, the Post reports about a Muslim man who fled the FBI, leading agents on a 90 MPH chase through Queens that culminated in a crash and foot chase on the Bronx-Whitestone Bridge. See N.Y. Post, Bridge 'Terror' Thug's Allah Cry, Jan. 9, 2010 at 5. The article says that the man--Adis Medunjanin--was a "high school acquaintance" of Najibullah Zazi, the New York student arrested last year for hoarding drugstore hydrogen peroxide in an alleged effort to build a bomb. Id. The FBI staked out his home for months. Finally, Medunjanin just left the house and ran. According to the report, he "praised Allah" in Arabic shortly before striking a car on the bridge. The report also claims he said: "We love death more than you love life!" in Arabic. Id. Finally, it says that authorities first merely charged him with leaving the scene of an accident. Later, they added terror-related charges. Id.

It is not clear how anyone heard these statements. The article does not say how FBI agents could hear what Medunjanin was saying in the instant before he crashed his car. It is also not clear under what circumstances he said "we love death more than you love life."

What is the net effect here? In short, the report leads the uncritical reader to assume that Medunjanin is a terrorist because he "said things in Arabic" and because he praised Allah. These are gross stereotypes. After all, what does the neutral evidence show here? It shows that Medunjanin was a high school acquaintance of a terror suspect six years ago. There is no evidence that they interacted with each other since that time. The FBI surveilled Medunjanin for months. Presumably, they also wiretapped him. The article does not divulge what the FBI may have heard in those wiretaps. All we know is that Medunjanin fled and crashed his car after saying something in Arabic about Allah, life and death. Those details suffice to brand him a terrorist.

That is bias at its worst.

What about presuming people innocent in the United States? What about fairness? How can Medunjanin escape the stigma that will now follow him? I find all these things unfortunate. After all, we are talking about a criminal prosecution for terrorism. That carries severe penalties. Yet the Post here gave Medunjanin an unfair trial before he was even arraigned. In so doing, it revealed the pernicious American bias that pervades our media: It made him a terrorist because he spoke Arabic, had a Muslim name, mentioned Allah and knew a suspected terrorist six years ago.

But is this the only conclusion to draw from the evidence? Perhaps Medunjanin simply "lost it" after being surveilled without reason for so long. And how do we know what he said in the car before he crashed? What if he said something in English, rather than Arabic? Would that have made a difference? What if he had said: "Oh shit, I'm about to crash" in Arabic? Would that still make him a terrorist? Who knows. All I know is that no one ever reports on these difficult questions in the American press--and especially not the Post.

In the second article, the Post again espouses its virulent prejudice toward Muslims. See N.Y. Post, How Did 'Undy Bomber' Get a Visa? Jan. 9, 2010 at p. 19. Columnist Michelle Malkin takes the opportunity to both generalize about Muslims and castigate the Obama administration for not spotting Umar Farouk Abdulmutallab before his failed bomb attack on Christmas Day.

Malkin argues that U.S. consular officials should never issue "coveted entrance pass[es]" to "globe-trotting, Nigerian-born nomad[s]" who "buy tickets in cash" without "checking in much baggage." Id. Later, she adds that "unmarried, rootless Muslim male nomads" should never receive U.S. visas, either.

Leaving the practical problems associated with Malkin's consular formula to one side, I find it appalling that she recommends a Federal policy based on invidious religious and ethnic stereotypes. After all, Malkin says that "Muslim male nomads" should not be allowed into the United States. Neither should "Nigerian-born" nomads, or "rootless" people, or "globe-trotters," or "unmarried people" or "people who fly with little baggage." These are not workable standards. And they are certainly not standards to which the United States should subscribe, a country that has always prided itself on diversity and equality. It would be awkward at best for the U.S. State Department to advertise America's openness to the world by saying: "Come one, come all…unless you're Muslim, a nomad, unmarried or Nigerian-born."

Hell, I'm unmarried, I fly with little baggage and I sometimes globe-trot to Europe. I shouldn't get a visa, either. Imagine if I was Nigerian: I'd really be in trouble.

In short, Malkin wants prejudice on a governmental scale. Yet her anti-Muslim views find strong support in the Post. Although Malkin's position is extreme, her basic bias against Muslims finds constant expression throughout the American press. In that light, I wonder why the Arab world casts a suspicious eye on America? Could it be that its media routinely mocks them and judges them as terrorists before the fact? I wonder.

We will not solve the tensions between the Muslim world and the West until we stop viewing Muslims as one-dimensional villains. The problems between the Muslim world and the West are understandable. We must merely examine the sharp contrast between the two value systems to see why problems persist. Unfortunately, newspapers do not like talking about value systems. Newspapers do not analyze values; they simply voice them. But the confrontation between the West and the Muslim world will continue until the West tries to understand why its values contrast so strongly with Muslim values.

Sadly, I do not think that's going to happen any time soon. Stubborn self-righteousness inheres in Western thought. And I think the West would rather fight a permanent war against a religion-based civilization than deign to comprehend it.

BEYOND A REASONABLE DOUBT : WHY IS IT SO HARD TO GRASP?

AN ESSAY

Legal doctrine abounds with verbal formulae. In law school, students memorize these shibboleths. They are the “magic spells” that allow them to “correctly” analyze any fact pattern. They rarely get a chance to reflect on what these “spells” mean from a grammatical perspective, or even whether they are prudent. Rather, law school students act under immense time pressure; they can do little but learn the formula and move on the next one. I doubt that many lawyers ever really ponder famous “legal formulae,” either. But since leaving the profession, I think about them all the time. And I see that there is nothing intrinsically prudent or sacred about them. They are merely administrative tools intended to bring illusory order to the nebulous disorder of human experience.

Everyone knows the phrase “beyond a reasonable doubt.” It appears all the time in movies, plays and even rap songs. Jay-Z named his debut album Reasonable Doubt. It has a mythical ring to it; it sounds appealing, even majestic. But does anyone really understand it? What is it? People assume that lawyers and judges understand it. They even think that it leads to the truth. Yet this is error. “Beyond a reasonable doubt” is an invention. It is a good invention because it seeks to protect individual liberty from wrongful criminal conviction. But it remains invention. It does not magically entitle judges and lawyers to find the truth.

“Beyond a reasonable doubt” is a “standard of proof” that governs criminal trials in the United States. In 1970, the Supreme Court famously held that the Constitution’s Due Process Clause requires every State government to apply the standard in every criminal trial. In re Winship, 397 U.S. 358 (1970). Unless the State proves “every fact necessary to constitute the crime charged beyond a reasonable doubt,” said the Court, it denies the defendant Due Process. Id. at 364 (emphasis added). This is hopeful language. After all, “beyond a reasonable doubt” means that a jury must indulge virtually every inconsistency in the evidence in the defendant’s favor. If there is a “tie,” it goes to the defendant—and individual liberty. It forces the government to put all “reasonable doubt” to rest about the defendant’s guilt before it can take away his liberty—or life.

But today I am not writing about constitutional law. I wrote about the law on this subject as a law student. “Beyond a reasonable doubt” interests me now because it impinges upon much larger concerns, like reason, truth, evidence and belief. Unlike many other legal doctrines, this one deals with facts: What do we believe about someone? What “actually happened?” More importantly, how “certain” must we be before we condemn someone to prison or death? And because “beyond a reasonable doubt” is a “verbal formula,” it has grammatical weaknesses. Lawyers do not think about these things. They just look to see what courts said about past cases.

What is the real issue, then? The real issue is evidence at trial. The State seeks either to imprison someone or execute him. It charges him with a crime, a written definition encompassing certain “bad behavior.” To convict him, it must put forward evidence proving that his conduct falls within the written definition. The prosecutor, jury and judge were not there to see this alleged “bad behavior.” There might be rumors about it. Perhaps there are witnesses; perhaps not. For better or worse, those called upon to decide a defendant’s fate must evaluate evidence to formulate the “truth” about “what actually happened.” No juror actually sensed or perceived the alleged event. They must engage in second-hand observation and decide whether something happened. Evidence gives them sensory fodder with which to judge “the truth.” They might hear a witness’ account or see a video recording. They might hear about footprints, or bloody gloves or even confessions. Yet they might also hear that witnesses have an interest in condemning the defendant, or that they have poor eyesight, or that they were distracted, or that the police coerced a confession. All these things constrain their Herculean task: To decide “the truth,” even if they were not there to perceive it.

Yet juries cannot simply speculate on the evidence. “Beyond a reasonable doubt” is an attempt to prevent juries from simply “imagining” things about the defendant. Rather, it forces them to look solely at the evidence. Remarkably, many courts over the centuries have not understood this, let alone the “everyday folk” who comprise juries. As recently as 1994, the Supreme Court dedicated an entire opinion struggling to explain what “reasonable doubt” actually means. Victor v. Nebraska; Sandoval v. California, 511 U.S. 1 (1994). There, the Court said that “reasonable doubt” does not mean “merely possible doubt,” but rather doubt that, “after consideration of all the evidence, leaves the jury with an abiding conviction, to a moral certainty, that the charge against the defendant is not true.” Id. at 8 (quoting Commonwealth v. Webster, 59 Mass. 295, 320 (1850)). It also said that “reasonable doubt:” “[W]ould cause a reasonable person, in one of the graver and more important transactions in life, to hesitate before accepting certain facts as true…it is doubt that, after full and fair consideration of the evidence, leaves you with and abiding conviction, to a moral certainty, that the accused committed the crime charged…you may be convinced beyond a reasonable doubt yet be fully aware that possibly you may be mistaken…you may find a defendant guilty upon the strong probabilities of the case, provided they are strong enough to exclude any doubt of his guilt that is reasonable…it is an actual and substantial doubt.” Victor v. Nebraska, 511 U.S. at 18.

Did the Court really need to spend so much time on the question? After all, it would have been easier to simply look at the phrase from a grammatical perspective. “Beyond” is a preposition that implies “movement past” a particular point. It implies linear motion: One moves along a path; one reaches a point on the path; one moves beyond the point. Anything before that point is not “beyond” the point. A jury can only convict a defendant if it decides that the evidence moves beyond “reasonable doubt” about his guilt. That is the magical point on the path. The evidence must move “past reasonable doubt” in order for the State to condemn the accused.

This is the point at which the Supreme Court should have considered “reasonable doubt.” The word “reasonable” appears everywhere in the law. Unfortunately, very few courts apply a consistent definition. In many cases, judges simply use the word to impose their own standards on certain behavior, namely, standards demanding steady living, hard work and “contribution to society with regard to the property rights of others.” Yet this “normalizing” definition really misses the point. After all, “reasonable” derives from “reason,” specifically, the human capacity to find truth through the senses. A person is “reasonable” if he believes only what his eyes, ears, nose and skin nerves tell him. It is “reasonable” to believe that snow fell last night if one awakes to see the ground covered in snow. It is verifiable. It is possible to infer the fact that snow fell while you slept from the fact that you see snow on the ground now. It is based on perceptible evidence. But it is not “reasonable” to believe that God exists, because no one sees God. Well, some people say they do, but do “reasonable people” believe them? No, they don’t. “Reasonable people” believe in their senses. They are empirical. They doubt anything that their senses do not perceive. For a person who trusts reason, “truth” is a matter of perception. If the person is not there to perceive an event, he listens to what others say about it, looks at physical residue concerning the event, then decides what “reasonably happened” based on things that can be perceived. This is “reasonable thinking.”

Reasonable doubt, then, is any doubt warranted by perceptible evidence. It rules out all speculation. It is purely evidence-based. The Supreme Court did not need to introduce extraneous concepts like “hesitancy” and “important life decisions” in order to explain “reasonable doubt.” It should merely have said that “reasonable doubt” refers solely to sensory evidence. It is doubt that arises from things we perceive. As long as the evidence permits us to doubt something, we have “reasonable doubt.” Doubt is not “reasonable” if we simply “imagine” it. And if we have “reasonable doubt” in any way, we have not moved “past” or “beyond” reasonable doubt. This is the grammatical way to understand the formula “beyond a reasonable doubt:” If we have it, we are not beyond it. We must acquit the defendant. But if we don’t have it and merely imagine it, we are beyond it. That means we must convict him.

I write all this because I think many lawyers and judges merely learn verbal formulae without seriously considering what the words mean. It is one thing to mouth phrases in order to score points on a test. It is quite another to genuinely ponder what those phrases mean in both grammatical and philosophical terms.

“Beyond a reasonable doubt” is a compelling phrase for several reasons. For one, it reinforces the law’s commitment to “reason” above all else. There is no faith in the law. Spirit is irrelevant. There is only body, property, the senses and “tangible things.” Reason can govern these things; yet it is banal. After all, there is nothing remarkable or spiritually uplifting about arguing over who saw what and who owes whom what dollar amount. These are the concerns of both reason and the law.

Second, “beyond a reasonable doubt” represents the law’s attempt to sort out facts. Courts have an immensely hard time doing this because facts are elusive. No matter what courts say, facts are never determinate. Facts merely represent belief based on second-hand evidence. When courts compose long “fact sections” in their opinions, they do not recount “exactly what happened.” They are merely reciting what the court below them “believed” after applying an arbitrary standard. Put simply, courts do not like talking about facts. Facts are messy. And in the end, they are arbitrary. Once one court believes a fact, it is almost impossible to alter that fact on appeal. This has nothing to do with “truth.” It has everything to do with “administrative convenience” and “interpretation.” Judges don’t reopen factual disputes because they inevitably degenerate into “he said she said” wars long after the event. Judges get to say: “OK, this is what happened,” even if their version is not really true. Interpretation is power: The power to announce the truth, even if untrue.

Reason can help us answer many questions about our existence. I trust it in all situations in which it is valid. I think it is valid in criminal law, because criminal law addresses matters to which reason applies: External behavior that can be “directly perceived” or “inferred.” It does not involve faith or belief; at least, in should not. “Beyond a reasonable doubt” is a good standard in criminal trials because it forces juries to apply only their reason, not their passions or their prejudices. Sensory evidence produces belief or doubt in the mind. When it produces doubt in a criminal case, the defendant must go free. In this sense, the standard favors liberty. As long as jurors understand what the words “reason” and “beyond” mean, they should never have a problem understanding the “beyond a reasonable doubt” standard.

But perhaps this is exactly the problem. After all, jurors—like all human beings—do not always use their reason at times when they should. Perhaps it is too much to expect that people will always be reasonable.

INFERENCES, IMPLICATIONS & FACTS

AN ESSAY

In Alexander O’Neal’s R & B hit Fake (1987), we hear about a woman who constantly changes her appearance and tells lies. In sum, Mr. O’Neal “decides” that the woman is “fake” because she changes her name and story too often for his liking; plus she cuts her hair and nails in a different style every day. I always liked this song because it was “convincing.” The singer sets forth “facts” that lead the listener to conclude that the woman is lying. After studying evidence in law school, I appreciated the song even more because it demonstrates the correct way to understand the word “inference.” Many people confuse the noun “inference” and the verb “to infer” with the noun “implication” or the verb “to imply.” The two concepts are very different. “Fake” can help us sort out the differences.

In Fake, Alexander O’Neal sings: “Your hair was long/ But now it’s short/ You said: ‘I Got it cut’/ But I don’t see no hair on the floor.” You don’t need to be a lawyer to grasp Mr. O’Neal’s attack on his subject’s credibility. He tells us that he saw the woman with long hair. Later, he saw her with short hair. She claims that she got a haircut. But Mr. O’Neal sees “no hair on the floor;” in other words, he sees no evidence to substantiate the woman’s story. Mr. O’Neal uses his senses and observations to undermine the woman’s claim. He tells us what he saw, what he heard and he gives an evidentiary reason to doubt the story. It is convincing. And it perfectly illustrates how lawyers use “facts” and “sense” to construct truth in court. In essence, Mr. O’Neal asks us to infer that the woman did not get a haircut from the fact that he saw no “hair on the floor.” If you see a person’s hair on the floor, that means something or someone cut the hair off. One fact proceeds from the other. That is an inference.

To understand inferences, we must understand some underlying terms. First, we need to agree what constitutes a “fact.” We all think we know what “facts” are. Yet if you’ve spent any time studying law—or even watching court shows on television—you recognize that we constantly argue about facts. We never agree on what they are. From a basic perspective, many people believe that a “fact” merely refers to what “actually happened.” Throughout law school, many professors gave exactly that definition. But this definition did not placate me. “What actually happened?” What does that mean? To apply that definition, we must assume that a human being senses something through sight, hearing, touch or taste. He perceived something. Then he tells about what “happened.” It requires an individual perspective. When the individual recounts what “actually happened,” he does not provide his listeners with the same knowledge he has. Rather, he presents his memory, which is necessarily weaker than actual experience. After all, we are sensory creatures. Our emotions and our experiences flow from our firsthand perceptions. If we are “not there” to experience an event with our senses, hearing someone’s memory about it does not provide the same knowledge. It is “second-hand” and far “weaker” than true experience. In my view, it is insufficient to define a “fact” as “something that actually happened.” Facts encompass much, much more. After all, no one doubts that the Revolutionary War “actually happened.” But can anyone present his or her personal memory about it? No. Yet everyone believes that the Revolutionary War happened. Why do we believe things that no living person perceives or even remembers?

I have long struggled to define “facts.” No law professor ever provided a satisfactory answer to this question, so I undertook to answer it myself. Now, facts intertwine with human sense. They also intertwine with human belief. If we perceive things with our senses, we believe them. When I say “belief,” I mean that an individual forms a subjective impression that something is true. A person may believe in something that does not exist; subjectively, he holds an impression that it is true, even if he cannot perceive it. For example, a person believes in God. That means he has the subjective impression that God exists. He believes, even though he cannot see God. We can agree that it is a “fact” that this man believes in God. But we cannot agree that it is a “fact” that God exists.

Why the distinction? To grasp this point, let us attempt to define facts. In my view, a “fact” is any act, event or condition that is objectively verifiable and perceptible to the human senses. Under this definition, we can confidently say that “facts” include more than what “actually happened.” After all, can we say that a person’s “belief in God” “actually happened?” Not really. “Belief” is a “condition,” namely an individual’s subjective impression that something is true. Whether someone holds a belief is verifiable and we can perceive it when the person tells us what he believes. But we cannot perceive God with our senses. He is not “objectively verifiable.” His existence may be a “condition,” but it is not perceptible to us. We cannot ask God whether he exists, and we cannot hear him when he answers. To that extent, we cannot accept as a “fact” that God exists.

Yet there are many other things that we can accept as “facts.” As long as someone could reasonably have perceived an act, event or condition, we can believe it to be a fact. In this sense, belief and fact intersect. For example, if we hear from an accident victim that he was “thrown 20 feet from his car” after feeling a “violent impact from behind,” we can reasonably believe that another car rear-ended him at relatively high speed, even if the victim did not see the car. We even believe that the negligent driver must have been traveling very fast, even though we were not sitting next to the negligent driver to personally see the speedometer before the crash. We believe these “facts” even though we did not perceive them because we make inferences from other facts. An “inference” is a fact we did not perceive that naturally follows from a fact we did perceive. There is nothing intuitive or magical about inferences. They are simply facts we can believe after perceiving other facts. After all, we cannot perceive everything in the world. Our sight and hearing have a very limited range. Yet by perceiving some things, we can infer that other things “must have happened.” For example, if we see blood on the sidewalk, it is a “fact” that there is blood on the sidewalk. We can infer that blood fell onto the sidewalk from some external source. We did not perceive the blood falling. But it is still a “fact” that blood wound up the sidewalk. This is an inference. It is a fact that necessarily flows from a fact we directly perceive. If we see our friend with a black eye, we can infer that something—or someone—struck our friend in the face with some force. We cannot infer anything more from that single fact. To get the full story, we need to investigate further.

Implications present a different question. Unlike inferences, implications do not lead us infallibly to facts. Rather, implications involve our intuition, not our logic. An implication refers to the likely circumstances explaining a particular fact or facts. If we see our friend with a black eye, we can infer only that something or someone struck him in the face with some force. Yet we can draw on our common experience to speculate that our friend probably got into a fight. Most black eyes happen when someone punches another person in the face. The implication here is that our friend got in a fight. Yet that is not an inference. The fact that our friend got a black eye does not necessarily lead to the conclusion that he got in a fight. A branch could have fallen from a tree and hit him in the face. He may have stumbled into an iron bar protruding from a building. We simply do not know the cause. Black eyes invite us to speculate about the facts surrounding the trauma. They offer us numerous implications. Yet we can only make one fair inference: That something or someone struck our friend in the face with sufficient force to cause bruising. That is the only fact that we can deduce from the fact we perceive.

What does it mean to “imply” something? There is a subtle difference between the noun “implication” and the verb “to imply.” Generally, “imply” refers to authority and degree in power and belief. Smaller powers are “implied” in large powers. Smaller beliefs are “implied” in large beliefs. When we speak about “implication” in this context, we normally face some interpretative venture. For example, questions about “implied power” commonly arise in agency problems. If we delegate authority to an agent to “buy us a home in San Diego,” and he winds up spending money on a real estate broker for Southern California, did he have authority to do this? Of course—it was a smaller power implied in his “larger” power to buy a home in San Diego. To achieve the large goal, it is implied that the agent may take suitable, “smaller” actions intended to reach it. It is a question of degree and congruence. When a person has a sweeping mandate—or maintains a sweeping belief—he implies that he can do numerous, unnamed “smaller” things to fulfill his objectives. Similarly, if a person believes in capital punishment, he implies that he believes in imprisonment, too. For to believe in something more severe implies that a person also believes in something less severe in less severe cases.

Many people confuse “imply” and “infer.” For the most part, they substitute “imply” for “infer.” We hear “imply” more often than “infer,” so more people use it. For example, a person might say: “I implied from the dirt on your jacket that you were working.” In fact, the person meant to say: “I inferred from the dirt on your jacket that you were working.” That may not be a fair inference, but the speaker nonetheless attempts to conclude a fact he did not perceive (that the person was working) from a fact he perceives (the dirt on the person’s jacket). “Imply” has nothing to do with it. The “implication” behind dirt on a jacket may be that the person was at work. Work may be “implied” in a dirty jacket. Yet we do not “imply” when we attempt to conclude one fact from another. That is an inference.

So how does this all fit in with Fake? Alexander O’Neal understood how powerful inferences can be when evaluating truth. When he sings that he “doesn’t see any hair on the floor,” he asks us to make several inferences. It is a “fact” that Mr. O’Neal did not see hair on the floor. That is an “act, event or condition” that he perceived with his own eyes. First, he asks to infer that the woman’s claim that she “got her hair cut” is a lie. After all, if there is no evidence to suggest a haircut, then we cannot rightly believe that the woman got her hair cut. If she had gotten her hair cut, we would have perceived a “fact” that leads us to that conclusion, namely, “hair on the floor.” Common experience tells us that when we get our hair cut, our hair falls on the floor and we can see it. Even if we walk into a barbershop after a person gets their hair cut and we see their hair on the floor, we can infer that the person (who now has short hair) just got his hair cut. That is a fair inference. Here, however, Mr. O’Neal tells us that he saw no evidence to substantiate the woman’s claim. We can “infer” that her claim is untrue—her untruthfulness is an “act, event or condition” that naturally flows from the “fact” that there is no hair on the floor.

Lastly, Mr. O’Neal asks us to infer that the woman did not get her hair cut. This has nothing to do with her trustworthiness. It is a straightforward inference. If we spend time around a person and never see their hair fall to the floor, we can correctly infer that they did not get their hair cut, even if we were not there to perceive it. That fact “naturally flows” from the fact we perceive.

I mention all this because “facts,” “inferences” and “implications” are words that we typically use without conceptual clarity. Even lawyers do not properly use these words. It is worth making the effort, however, to tease out the subtle distinctions between these words because they help us construct “truth.” In this context, truth refers to “human perception.” We believe what we perceive, and if we are not “there” to perceive something, we believe what makes logical sense to our eyes and ears. Inferences make perfect logical sense. They allow us to believe “facts” without ever “being there” to perceive them. That is an extremely useful tool. When we precisely understand inferences, we can more fairly judge what we see and hear. It is difficult to sort out the truth in this world. When we approach it with some logical consistency, it makes our job significantly more bearable. In this narrow approach to truth, our senses provide all the answers.