Judicial Magic
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.
