How do you deal with an accusation based on a memory so long ago and so lacking in detail that it can neither be proved nor disproved? The Senate Judiciary Committee is going to hold a hearing on the accusation by Christine Ford against Brett Kavanaugh, but we can already be fairly sure it will be inconclusive, with many people seeing the result they want to see.
In criminal law, an accusation that can't be proved results in acquittal, even though it can't be disproved either. As we have noted before on this blog, "exonerations" on the so-called "innocence list" can be the result of a case going back to the trial court decades after the crime.
How about nominations? Should an unprovable-undisprovable accusation from decades ago scuttle the nomination of a person who has been a straight arrow ever since and (according to dozens of contemporaries) was also one at the time with the possible/possibly not exception of this one incident? The WSJ has this editorial taking the "no" side of that question.
I don't agree with everything in the article. The WSJ says, "Ms. Ford concedes she told no one about it--not even a high school girl
friend or family member--until 2012 when she told the story as part of
couples therapy with her husband." That is the old "fresh report" requirement. It is not valid as matter of victim psychology. Many genuine sexual assault victims do not tell anyone. The requirement, where it still exists, may provide some protection against false accusations, but it throws a lot of babies out with the bath water.
The editorial is on better ground with this issue:
The vagaries of memory are well known, all the more so when they emerge in the cauldron of a therapy session to rescue a marriage. Experts know that human beings can come to believe firmly over the years that something happened when it never did or is based on partial truth. Mistaken identity is also possible.
The work of Elizabeth Loftus demonstrates how memories are malleable in different ways, and the more time passes the more opportunity the memory-distorting forces have to do their work. We cannot ignore the possibility that Professor Ford really was assaulted at a party at age 15 and is quite sincere in saying it was Brett Kavanaugh, but actually it was someone else. He might not have been at the party at all, but there is no way to prove that given that she does not remember the date or place.
Certainly Republicans will have to handle Professor Ford with kid gloves at the hearing. Given how many people believe, rightly or wrongly, that Anita Hill was mistreated back in 1991, there can be no doubt that the Democrats are just salivating at the prospect of producing a campaign issue out of Monday's hearing -- despite the fact that they were the ones who sat on the accusing letter until the eleventh hour.
The fact that this accusation is completely inconsistent with all other reports of Judge Kavanaugh's life, reputation, and character also matters. As the WSJ notes:
It would also be a serious injustice to a man who has by all accounts other than Ms. Ford's led a life of respect for women and the law. Every #MeToo miscreant is a repeat offender. The accusation against Mr. Kavanaugh is behavior manifested nowhere else in his life.
It's a difficult, delicate issue, but I think that allowing an unproveable, decades-old accusation from a person's youth -- even a serious one -- to derail a nomination is not a step we want to take.
Kent, do you believe a single accuser's testimony alone about a decades-old event can be enough to "prove" a crime beyond a reasonable doubt? Can it be enough, in your view, to "prove" a tort by a preponderance of evidence?
I doubt you are claiming that a criminal conviction (let alone a tort) cannot be legally sustained if based only on the assertions of a single witness/victim. But I sense you might be saying that the passage of a certain amount of time raises so many doubts that one person's testimony alone cannot reach a certain threshold of proof.
I am not trying to play "gotcha" here, but rather trying to figure out if this is a proof issue, a time issue, or something else in your mind.
I am generally not in favor of "bright line" evidence rules to the effect that a particular kind of evidence is categorically insufficient. In each case, the credibility of evidence should be evaluated on the merits.
From what we know so far, the reliability of this witness's recall is questionable from the age of the memory, her (entirely understandable) inability to remember other aspects of the incident (such as whose party it was), and the contrary statement of the third party allegedly in the room.
I would have liked to hear her in person before making a final judgment, but now that may not happen. Previously it was said she wanted to tell her story, but now we are hearing that her lawyer insists on an FBI investigation first.
There is zero legitimate reason for a witness to insist on a full investigation first before making her statement. That is backwards. Witness statements should be made before the witness obtains information from outside sources. The research on memory demonstrates that memories can actually be changed by outside information.
I think that those who jumped to the conclusion that her motives were political were off-base at the time, but now we have a strong indication that is exactly what is going on here.
Fair points and a helpful explanation of your thinking.
Decencyevolves: Dr. Ford is pressing for investigation, which I imagine is what she’d do if she genuinely believed what she was saying and wanted to be taken seriously. She and her family are in hiding on account of death threats, so her initial reluctance to be named was not without cause. If the Senate Judiciary Committee really wanted to get to the bottom of this, rather than brush past it so they can confirm Kavanaugh immediately, they would be willing to take a few days to do just that. Their unwillingness to press the White House for follow up investigation by the FBI, as was done in the Thomas hearings, or to call more witnesses than Kavanaugh and Ford, reveals the leadership’s intention to provide enough process to say they have looked into it without providing so much that they meaningfully assess the facts.
Seriously? Demanding an FBI investigation is a painfully transparent delay tactic.
If Feinstein wanted to get to the bottom of this, she would have pushed the issue weeks ago. As for the FBI, what, exactly, is it supposed to do--there's no prosecutable crime here.
Curious your views on "Beto" and his DUI and the apparent favoritism he received . ... . .
I do not think that complying with what she originally asked for, a hearing, constitutes "brushing past."
The FBI investigation in the Thomas/Hill case took two days and the Senate called 22 witnesses, yet it didn’t consume a great deal of time. Calling two witnesses—one of whom will say “it never happened” and the other who will say “it did”—is a near guarantee of totally inconclusive results. That seems to be a feature, not a bug, of the Senate Judiciary Committee’s approach. Does leadership want to get to the bottom of this or not. Their approach answers the question.
Steve Schmidt, former McCain aide, made this comment, which I think has relevance: “Riddle me this. If someone is lying (Dr.Ford) and they know that lying to the FBI is a crime, why would they be asking for an FBI investigation? If a sitting Federal Judge is accused of something he denies with his reputation at stake why wouldn’t he demand one?”
If the FBI can get it done in two days, that suggests a compromise. The hearing could be postponed for a few days, and the Democrats would agree that the matter can be voted on promptly both in the committee and on the floor, without exercising the procedural options they have to delay votes. There is no need for floor debate in this matter. There is no chance that floor debate will change a single vote.
I expect the Republicans would agree to that. I very much doubt the Democrats would.
It not just the passage of time, but the body of scientific literature that suggests that people generally do not recall traumatic events accurately.
The work of Loftus and others have demonstrated that memory is not like a video camera, capturing data as it unfolds. Memories are re-created in our consciousness and often contain errors.
Much of this was known in some fashion before the science was in, which is why statutes of limitations have long been in existence. It is also why I find the push to remove statute of limitations on sex crimes to be troublesome.
It may be that details of such things were misremembered, but if it did occur as Dr. Ford said it did, I wouldn’t want the person who did it on the Court no matter their politics or age at the time of the assault. The fact that there is so little interest in getting to the bottom of it among the GOP leadership is telling.
I don’t have any doubt that if the situation were reversed, a Democratic President would withdraw the nomination and select another politically compatible nominee instead. The parties have diverged on this: Al Franken, John Conyers, and Elliot Spitzer were treated very differently by Democrats than David Vitter, Jim Jordan and Roy Moore were treated by Republicans. That’s unfortunate.
I wouldn't want the person who did it on the Court either. I very much doubt that Kavanaugh did what he is accused of doing.
You seem to have great faith that the FBI could resolve the issue, yet the very precedent you cite is one where the issue was not definitively resolved.
Cases of clear complicity are not comparable. Al Franken was on camera in the act, and grinning for the camera. That is very different.
These former prosecutors disagree with you (and, FWIW, so do I):
https://www.nbcnews.com/think/opinion/allegations-against-brett-kavanaugh-are-not-simply-he-said-she-ncna910771
I'm not sure there is as much disagreement between me and the authors of this article as you think.
We agree that the "fresh complaint" criticism is not valid.
The authors note several indications that Dr. Ford is not lying. I don't disagree with that, and I haven't said she is. It is quite possible that she is sincerely saying what she remembers.
The original point of the post is that it is possible, particularly with long ago events, that people can have different memories because memories are malleable. One scenario that cannot be dismissed at this point is that the assault really happened but it was someone she did not know and later came to believe and "remember" was Kavanaugh.
Note Dr. Erickson's comment. He probably knows more about psychology than everyone else in this thread put together.
The authors propose, "Witnesses, in addition to Ford and Kavanaugh, should be interviewed by nonpartisan investigators before they testify." I am not opposed to that. I suggested a compromise to bring it about.
"The fact that there is so little interest in getting to the bottom of it among the GOP leadership is telling."
Perhaps what it is revealing is that lawmakers understand that given the nature of the evidence, a definitive answer cannot be achieved no matter how much effort is applied.
One thing is for certain—no definitive answer will be reached if the “investigation” amounts to nothing more than questioning Kavanaugh and Ford on Monday. As I say, that seems to be the intent of the GOP leadership. Grassley’s chief counsel, Mike Davis, just tweeted, “Unfazed and determined. We will confirm Judge Kavanaugh.” And Senator Heller stated in a conference call with Nevada Republicans, “We got a little hiccup here with the Kavanaugh nomination, we’ll get through this and we’ll get off to the races.” With attitudes like that, if I were in Dr. Ford’s position, I’d want an FBI investigation too.
We will only know how long an investigation will take if the FBI is asked. So far Trump has resolutely blocked any investigation. Generally if you are have the truth on your side you would be okay with an investigation, so it is interesting to me who is opposed and who is requesting.
Kent, given your comments I am curious whether you oppose recent extensions of statues of limitations in sexual assault cases? Do you think that there should be a statute of limitations on all crimes, including murder, which is absent in may states. Also do you think that testimony of experts like Dr. Loftus, which prosecutors frequently strongly resist, should be allowed in criminal cases?
https://thehornnews.com/5-most-dangerous-threats-to-republicans-this-week/
From your NBC article:
"In addition, consider the motives of Ford, who by all accounts is not a particularly politically active person, to go public with allegations of sexual assault."
=======
Now some facts:
+++ "Christine Blasey Ford, the woman accusing Judge Brett Kavanaugh of sexually assaulting her more than 30 years ago, wore a brain-inspired pink p--@! hat to
San Francisco’s March for Science in April 2017.
..the march was organized by scientists as a reaction to President Donald Trump’s presidency... Ford has also donated to Sen. Bernie Sanders (I-VT) 2016
presidential campaign."
+++ "Christine Blasey Ford, a psychology professor, signed the ACLU letter as “Christine Blasey Ph.D. Psychologist,” signing off on statements that accused Trump of using southern border enforcement to “traumatize children” and claimed the Zero Tolerance policy was “violating fundamental human rights.”
++ "Debra Katz, the attorney representing Kavanaugh’s accuser — Christine Blasey Ford — is vice chair of the Project on Government Oversight, an organization that has been directly funded by Soros’ Open Society Foundation .Katz is also a hefty Democratic donor, giving thousands of dollars over the years to Barack Obama, Hillary Clinton and other leftist candidates, as Front Page Mag reported,
++ "Debra Katz, a liberal Democrat activist lawyer who has publicly touted
that she is part of “the Resistance” to President Trump and his agenda."
~ From demented minds, come demented assessments. F-F-Fake news.
https://dailycaller.com/2018/09/17/kavanaugh-accuser-christine-ford-pussy-hat/
https://www.washingtontimes.com/news/2018/sep/18/brett-kavanaugh-christine-blasey-ford-and-links-ge/
https://www.breitbart.com/big-government/2018/09/16/kavanaugh-accuser-signed-letter-fighting-trump-border-enforcement/; https://www.breitbart.com/big-government/2018/09/16/christine-blasey-ford-breaks-silence-about-brett-kavanaugh-rape-attempt/
I have not been in favor of wholesale repeals of statutes of limitations in sexual assault cases, though some adjustments were needed, such as extensions until some reasonable period after a child victim reached maturity. CJLF has not taken a position in this area.
Murder has traditionally not been subject to a statute of limitations, and I do not think it should be.
I would not make a blanket statement either way about the admissibility of testimony of memory experts.
The person who knows for certain whether Judge Kavanaugh is telling the truth is, obviously, Judge Kavanaugh, and I have not seen any statement regarding his position on an investigation one way or the other.
I have it on good authority that nominees are under strict orders from the White House to say nothing in public, so he can't just make a statement. What his position is behind the scenes we simply do not know.
Kent—There’s always Ed Whelan’s dynamite theory that Dr. Ford’s assailant was Kavanaugh’s classmate, Chris Garrett. What do you think of that?
You want to know what is “telling?” That T-Bone’s best friend Corey Booker along with Keith Ellison still hold positions of prominence even though one (Booker) admitted to a sexual assault and the other has two credible claims against him for beating women.
I'm not sure what any investigation, no matter how resourceful, could yield at this point. The alleged conduct took place 36 years ago. Nothing is going to change that fact.