January 01, 2019 Feature

Rethinking Credibility and the Burden of Proof

The Blasey Ford/Kavanaugh hearing provides a backdrop for examining the four stages of credibility and how factual disputes are actually resolved.

Kenneth R. Berman

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Law school didn’t teach us about the real burden of proof. Let’s rethink it.

Shortly before the Senate was to confirm Judge Brett Kavanaugh for the Supreme Court, something unexpected happened: an accusation of sexual misconduct. Professor Christine Blasey Ford claimed that when she was 15, a 17-year-old Kavanaugh threw her on a bed, tried to rip her clothes off, and covered her mouth so that no one would hear her scream.

Kavanaugh denied it. He claimed that, if Blasey Ford had been attacked, it wasn’t him.

Two claims. She said; he said. Only one of their stories could be true.

The Senate Judiciary Committee decided to hold a hearing and give them each a chance to tell their stories, presumably so that the truth would emerge. After some wrangling over ground rules, including who would go first (it was Blasey Ford) and whether other witnesses could or should be called (they couldn’t and weren’t), the protagonists spoke, questions were asked, the Federal Bureau of Investigation (FBI) conducted a limited but private follow-up investigation of little consequence, the Republican majority on the committee recommended Kavanaugh’s confirmation, and that’s what the Senate did.

Those in the Blasey Ford camp were convinced that she was telling the truth, that her memory was accurate, and that the hearing was a sham. They believed that the ultimate confirmation vote was preordained, no matter what the evidence showed, and that the Republican leaders on the committee and in the Senate engineered the result, without treating Blasey Ford’s allegations with the seriousness they deserved.

Some in the Kavanaugh camp tried to treat Blasey Ford’s allegations, at least outwardly, with respect, but others treated them with disdain. In the end, the Kavanaugh backers chose to believe that Blasey Ford’s memory was faulty, pointing to Kavanaugh’s adamant denials as evidence of his innocence. They brushed aside the suggestion that more evidence was needed. They dismissed the argument that Kavanaugh so discredited himself in the hearing with his tirades and weeping that this alone should have disqualified him.

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