Simon Law Firm November 2018

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november 2018

A Closer Look at the Kavanaugh Hearings

As America sat transfixed by the Judge Kavanaugh confirmation hearings last month, we were assaulted by “experts” telling us that Dr. Ford had no evidence. Without diving into the politics, allow me to explain some basics. There are basically two types of evidence: direct and circumstantial. Eyewitness testimony to an event is direct evidence of the highest order, and it’s more than enough to get a criminal warrant and allow a civil case to proceed to the jury in most situations. Circumstantial evidence is proof of other facts consistent with the hypothesis claimed . Putting it simply, both Judge Kavanaugh and Dr. Ford had direct evidence that the act did not or did happen, depending on who you ask. The entire line of questioning about whether anyone else remembered the party and the calendars was seeking circumstantial evidence that tended to make the assault more or less likely. One thing is always true: Eyewitness testimony is not gospel, and it must be weighed and tested. When there is eyewitness testimony about a fact, the passage of time, the lack of corroborating witnesses, and a lack of immediate reporting to others, it’s considered under the law when weighing the strength or weakness of the evidence. Likewise, the Judge’s denial of his ways when he was a young man may have seemed less than genuine, and those can be considered in a trial. Had this hearing been a criminal trial for the assault, it is likely the evidence would not have met the “beyond a reasonable doubt” standard.

Georgia courts are constantly considering the weight and admissibility of evidence to decide whether facts and issues should go to a jury. One of the court’s primary roles is to decide whether there is enough evidence of reliable quality to allow an issue to be presented. Another is to determine if the nature of the evidence is admissible or is inadmissible (think hearsay). In the case of Callaway v. Quinn, a lady was rear-ended and injured while driving. The truck sped off and was later found parked at a random business. The police went to the registered owner’s house, and he never came to the door. He never reported the truck missing, and he refused to pick it up from the wrecking yard. He claimed it was a beater, and yet he kept it tagged and insured. He told the lawyers that he suspected the former boyfriend of his sister-in-law may have taken the truck, but he could not be sure. The man filed a motion for summary judgment with the court, arguing that his direct evidence, his testimony that he was not driving, was more powerful than any of the circumstantial evidence that the plaintiff pointed to — basically all of the circumstances in the paragraph above. The court disagreed and said that when the circumstantial evidence makes the direct testimony unlikely, then it can overwhelm direct evidence and the case continues to a jury. Before circumstantial evidence can have any probative value to rebut or contradict direct and positive testimony of an unimpeached

witness of the alleged facts in question, such evidence must point at least more strongly to a conclusion opposite to the direct testimony. It is not sufficient that such circumstantial evidence points equally one way or the other. As we all sit here and fume one way or another about how the confirmation hearing went, we need to remember several things as Americans. The rule of law is more important than any one case. The hearing was not a trial, and the claim of assault appeared at the eleventh hour without any contemporaneous circumstantial evidence to support it. Justice Kavanaugh may have shown himself to lack the necessary demeanor to be a Supreme Court justice, and that is my opinion, but the reality is there simply was not enough evidence of the assault claim for the panel to give it weight. It is possible to believe the accuser while acknowledging that her reluctance to come forward at some point in the last 30 some years and without corroborating testimony or circumstantial evidence made the charge too weak to prevent confirmation.

–Christopher Simon

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