Vermont’s Quiet Abrogation of Evidentiary Standards
It all begins with an idea.
Ancient wisdom dating back centuries has given us the jury as a shield against the inevitable injustice of the judge and jury being one and the same. Nevertheless, bench trials with no jury persist in areas like Bankruptcy, Small Claims, Family Court etc… In such areas, a legitimate test of the Standard of Evidence becomes critical to preserve it’s key function. To shield us from the individual biases of the factfinder.
According to the Supreme Court of Vermont, however, “any credible evidence” is enough to meet any standard of evidence, effectively nullifying the very purpose of this critical Constitutional Requirement.
Function of Standards of Evidence
Standards of Evidence are the guardrails that prevent a trial judge’s personal impressions, biases, and preferences from becoming the deciding force in a case. The United States Supreme Court has established different standards that form the guiding principles that balance risk between the Plaintiff and Defendant in a case.
For criminal prosecutions, where risk is highest, the standard is “beyond a reasonable doubt”. Which essentially speaks for itself. There must be no reasonable doubt as to the guilt of the Defendant.
For most Civil cases, the risk must be balanced between the two parties with neither having a higher burden, which means 51% certainty is the threashold
In cases involving things more important than money, and where the risk should not be balanced equally(such as Termination of Parental Rights where “the child registers no gain” from error) the standard is Clear and Convincing Evidence, which remains between the two other standards, perhaps roughly 75% certainty balancing the risk more appropriately
In Vermont, however, the Vermont Supreme Court has established a new standard. They hold that regardless of the standard of evidence;
In Vermont Court, findings are not erroneous if "any credible evidence” exists to support them and all evidence contradicting the Findings are excluded when considering whether the standard was applied reasonably.
Notably, they are not saying they don’t review factfinding or test the standard because that would violate the 14th Amendment in any case where appeal is a right, and they know that. The phrasing is careful, but that only highlights the justices’ understanding of precisely what is being done here. It isn’t an oversight, it’s a tactical elimination of the standard that has gone under the radar for decades.
Constitutional Right to Reasonably Application of Legal Standards
If the 14th Amendment requires a particular legal standard to be applied, then as a matter of law it is erroneous to fail to apply that standard reasonably. Let’s juxtapose the U.S. Supreme Court(and all other states I have reviewed) precedent determining the threshold.
Findings are erroneous if, upon viewing the record in its entirety, the record does not adequately support the findings to the degree of certainty required by the proper Standard of Evidence. In short, the standard must be applied reasonably, but findings are not overturned just because the appellate court would have called the facts differently.(Summary of SCOTUS precedent)
In Vermont, findings can be contradicted by mountains of evidence, but contradictory evidence is not relevant to the calculous. The Standard of Evidence has been properly applied, in the view of the SCOV, so long as there is “any credible evidence” to support the findings. The findings need not be credible, plausible, or even possible in light of the record.
The Vermont Supreme Court expanded upon this view extensively in Mullins v. Phelps and explained that the Preponderance of Evidence standard was met in spite of the mountain of evidence and litigation history contradicting the findings;
The father had prevailed annually for 5 years in defending against the mother’s allegations that he was sexually abusing the kids,
DCF investigated and warned from the start that mom was coaching the kids and trying to extend her visitation through false allegations
The psychologist following the case for 5 years found the allegations not credible,
The child recanted and said mom was telling him what to say and staging events to make it look like they were afraid of their dad
Incidents of the children not wanting to get on the plane to fly to visit dad only occurred under the watch of their mother and appeared to be performances for her as opposed to genuine acts driven by the children
The court rested its findings on the fact that a new expert who had a different view than the previous 3 experts. This new expert did not review the case history, consult with other experts, or do the extensive review that DCF and the psychologist had done over years. There was no explanation as to the child recanting or describing how mom was staging events to give the appearance that they were scared of dad or why the DCF warning of coaching was disregarded as the child insisted they were coached and events were staged.
The SCOV made sure to indicate in Mullins v. Phelps that contradictory evidence is simply not relevant to the calculation of whether or not the standard of evidence was applied properly. It’s reviewable, but not erroneous, which is an important distinction.
The varied excuses for considering whether the findings have met the requisite legal standard include;
Deference to the trial court’s weighing of the evidence
The lower court is in a better position to judge credibility of witnesses
The court has broad discretion
The problem with all of the reasoning remains that an exercise of discretion is an abuse of discretion when they fail to apply legal standards reasonably. Although courts sometimes interpret words to be something more specific and narrow in legal contexts, discretion as a word is limited to a reasonable or responsible exercise of discretion. Deference is not the same as abrogation. The court does not have the discretion to disregard the standard. They have the discretion to make a call within the boundaries of reason or as Webster’s Dictionary says “power to choose or decide freely within certain legal bounds”.
As a matter of law, findings are in violation of the 14th Amendment when they are not reasonable in light of the record and standard of evidence. To eliminate the availability of that argument on appeal is to eliminate the very function of the standard itself.
UNREVIEWABLE VS. NOT ERONEOUS
There is an important distinction. If a finding or legal conclusion can only be unreviewable if no Constitutional Right to review exists. In such cases, preclusion is likely waived where review is not available as it has long been held by courts that when review is unavailable, there is less cause for certainty that a mistake has not been made. Thus, those findings/conclusions should not be carried forward into another proceeding and potentially duplicate the error, particularly if the subsequent proceeding DOES involve a right to review.
A finding that is Not Erroneous is one that has been reviewed, and the court has found that the legal standards have been properly applied, and any Constitutional Rights have been protected in the proceeding.
I think there should be no dispute that when the SCOV says the mere existence of evidence satisfies the standard, they have simply abrogated the standard entirely.
Let’s use a hypothetical. In this case we’ll pick an area of law where there is no jury right, so the judge is also the jury.
Mr. Smith is the sole caregiver for his minor child while his wife Ms. Smith is institutionalized for 2 years with a severe psychiatric disorder
When Ms. Smith is released, she files for divorce and to terminate Mr. Smith’s parental rights alleging that she was the sole caregiver and he was an absent father who only showed up a few times and he beat her and the child, then left again.
He provides documentation that she was institutionalized. Her medical records are subpoenaed. Surveillance footage documents her intake and release. Medical providers testify and verify her stay.
He provides dozens of photos and videos of himself and the child over the time he was supposedly absent, documents and testimony from the child’s school and medical providers verifying that he was the only care provider they ever saw.
Now, if the judge accepts her testimony over the mountain of evidence and terminates his rights, that is not erroneous under the SCOV precedent. It’s indisputably wrong, yet the SCOV will exclude all modifying evidence and only consider that the court found her testimony credible and nothing else is relevant to considering whether the findings are erroneous.
While the Mullins v. Phelps case is not quite that extreme, it approaches it in terms of the absurdity. The bottom line is, while the SCOV could hold that findings are unreviewable in any case where appeal is not a right, they cannot hold that findings are not erroneous when they fail to apply requisite legal standards reasonably. Not even “broad discretion” or “deference to the trial court” excuses the disregard for critical legal standards.
Conclusions
This issue is actually far more problematic than it seems when we also consider what modern study shows us about the effect and prevalence of bias in the judiciary, how it manifests in factfinding, and how deference in factfinding is used to shield questionable legal conclusions from scrutiny.
For more on Fact Discretion and the Echo Chamber of judicial decisions, see those related Blog Posts
There really is only one standard that makes sense when considering whether the lower court has properly applied the Constitutionally Required Standard of Evidence. It is the standard already used by the SCOTUS. In short, it gives deference to the trial court only within the boundaries of reason.
Therefore the only proper standard is that ‘findings are erroneous if they are not reasonable in light of the record in its entirety and the requisite standard of evidence, however findings are not erronous simply because the reviewing court would have called the facts differently.’ That is not a direct quote, but a paraphrase of the prevailing SCOTUS precedent.
For citations, inquiries, or requests for articles or speaking engagements, see the contact form.
Judicial Magic
It all begins with an idea.
To make this topic more accessible to the layperson, this is a more colloquial take on my work about Standards of Evidence. I’ll try to limit the legalese and paint a picture that anyone should be able to grasp. Below I will illustrate how one of our most important safeguards against judicial abuse has been replaced with a ritual no more useful than sprinkling holy water on a completed Judicial Order. Bear with me, it will all be clear.
The term ‘Standard of Evidence’ is often used when discussing court processes, but not everyone is clear on what that means. There are three important ones.
Preponderance of Evidence - means more likely than not. Essentially, the court or jury should be at least 51% certain that their representation of the case is true based upon the evidence. This is important in many cases between two people where it would be unfair to set a higher bar for one of them to prove the case.
Clear and Convincing Evidence - Higher than Preponderance of Evidence, perhaps something like 75% certain. This reflects cases that are not criminal, but where the Plaintiff should have a higher bar to prove their case. Terminating Parental Rights is one example, because the US. Supreme Court explains the child' does not benefit from being taken from a fit parent, so there must be a higher level of certainty
Beyond a Reasonable Doubt - self explanatory. There is literally no reason to doubt the guilt of the party. It’s a very high bar.
Now, if you were to take a law class and have to explain the minimum required to meet the standard, it is always about the evidence presented and how compelling one case is overall compared to another. It doesn’t mean that there are 100 pages of documents and 51% of them support one outcome. A hand-scrawled note describing an event would not be as convincing as a video of that event, for example. So it’s not an exact science.
For public interest, and judicial review, the facts represented by the judge or jury should be reasonable when considering both the standard of evidence, and the evidence presented. If no reasonable person could come to the conclusions of the judge or jury, then it is a legal error and result in a do-over(remand or vacate and return to the trial court for more proceedings).
I’ve only seen one state effectively eliminate the function of those standards. That is Vermont. As far as I have seen, it is the only state that says any evidence is enough to meet the standard. I’ve heard a few amusing names for their standard, which is literally farcical;
Choose Your Own Adventure Standard - Pick at least one piece of evidence to interpret into any story that fits, then throw out every other piece of evidence. Regardless of what was excluded, it is not erroneous if any evidence exists to support it
Any Evidence Standard - Findings are not erroneous if any evidence exists to support them and contradictory evidence is irrelevant to the question of whether the standard was met
You get the idea. If a professor wanted to illustrate to law school students the difference between a meaningful standard and a farcicle one, the Vermont Standard is perfect. To find out whether the findings were reasonable, they do a test where they only consider what supports the outcome. It’s really not a test, is it? It’s closer to asking the court to pinky swear they didn’t make a mistake, which would undoubtedly capture as much error as Vermont’s current standard.
Under that standard, what do you really need to prevail in Vermont?
At least one piece of evidence
The Favor of the Court
It really doesn’t matter how strong your case is or how unreasonable the other party is. Supreme Court of Vermont precedent is unwavering in holding that the standards need not be reasonably applied.
Ironically, the court does need to sometimes use the right standard in their orders, however, actually meeting that standard is entirely on the honor system. As the Vermont Supreme Court uses the terms, they’re just magic words that grant their magical power to the order, making it Due Process. It’s NOT, as the Constitution requires, the reasonable application of that standard that gives it the power.
Without legislative action, the SCOV is not likely to change their decades long precedent. I DO think they need to be informed, however, that the public expects legal standards to be applied, not used as magical incantations as they waive the gavel over the order like a magic wand.