So You Say: Demonstrated Facts V. Unsupported Assertions

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So You Say: Demonstrated Facts v. Unsupported Assertions

Prepared by: Toni Boone, Administrative Law Judge (retired) Nevada Department of Motor Vehicles and W. Michael Gillette, Associate Justice (retired) Oregon Supreme Court Shareholder: Schwabe, Williamson & Wyatt

Prepared for: 2017 National Association of Hearing Officials Professional Development Conference

Toni Boone, Administrative Law Judge (retired) W. Michael Gillette, Association Justice, Oregon Supreme Court (retired)

I. Burdens of Proof

A. “Burden of Proof” Defined:

1. Duty placed upon a party to a civil or criminal action to prove or disprove a disputed fact.

2. “Burden of Proof” is also used as a synonym for “Burden of Persuasion” which is the quantum of proof by which the party with the burden of proof must establish or refute a disputed fact.

B. Preponderance of the Evidence Defined:

1. Evidence, as a whole, shows fact to be proved is more probable than not.

2. The existence of the fact at issue is more likely than not.

3. The greater weight of the credible evidence.

4. More evidence or more credible evidence than evidence offered in opposition to it.

C. Clear and Convincing Evidence Defined:

The existence of a particular fact is highly probable or reasonably certain.

This standard may be used in some jurisdictions when the issue is whether a person was guilty of deceit or fraud—a matter that had to be proved at common law by clear and convincing evidence, rather than by a mere preponderance.

D. Beyond a Reasonable Doubt Defined:

1. There is no reasonable doubt concerning the existence of the fact at issue.

2. Fully satisfied, entirely convinced, and satisfied to a moral certainty.

3. The facts proven must, by virtue of their probative force, establish guilt.

4. Because defense attorneys are accustomed to the “Beyond a Reasonable

So You Say: Demonstrated Facts v. Unsupported Assertions © 2017 Ipse Dixit Publications 2017 National Association of Hearing Officials Professional Development Conference Page 2 Doubt” burden in a criminal trial, they act as if (and may truly believe) that they’re entitled to prevail in the administrative hearing if they have raised any question/doubt regarding the facts at issue.

E. Meeting the Burden of Proof

If, at the conclusion of a hearing, neither party has persuaded you of the correctness of his/her version of events, the party who has the burden of proof has not met his/her burden and must “lose.”

II. When Does Evidence Preponderate? (i.e., When has the burden of “preponderance of the evidence” been met?)

A. Under the preponderance of the evidence standard, it’s not necessary to eliminate every possible alternate explanation of the facts. It is only necessary to find what is more probable than not out of the various scenarios.

B. Evidence preponderates when it is more likely than not that a particular fact is true.

C. Evidence preponderates when it concurs with reason and probability.

III. Categories of evidence

Evidence sometimes is divided into two categories, based on whether the evidence standing by itself proves a fact or whether, instead, the fact to be proved must be inferred from the fact proved by the evidence. Such categories are called respectfully “direct” evidence and “indirect” (or “circumstantial”) evidence:

A. Direct evidence is evidence that proves a fact by its very existence (such as evidence of a rock, or a gun), or which directly describes a fact or event (usually through the sworn testimony of an eyewitness).

B. Indirect (circumstantial) evidence is evidence of a fact or facts which, when proved, imply the existence or non-existence of other facts. (Examples include evidence that a person had an odor of alcohol on the person's breath, which is indirect evidence that the person had been drinking, and evidence that a person did not have powder residue on the person's hands or clothes, which is indirect evidence that the person had not recently fired a gun.)

A. In order for a piece of evidence to support an inference, it isn’t necessary that the inference be the only inference that could be drawn. It is only necessary that the inference be plausible or believable.

B. A reasonable inference is one that, in light of all the other evidence, a reasonable person would draw. (e.g. It would be reasonable to infer that a person standing outside a vehicle drove the vehicle to that location if there is no one else present that could have driven the vehicle and no other explanation as to how the vehicle arrived at that location.)

V. Presumptions

A “presumption” is an inference that the law permits a trier of fact to draw from certain evidence, without any further evidence being introduced to support the inference. In some cases, the legislature has directed that certain presumptions apply, as when the law declares that a person is deemed to be under the influence of alcohol if the person's blood alcohol level is at or above .08 per cent by weight. In other cases, the presumption is one created at common law, such as the presumption that a child born during wedlock is the biological child of the husband. There are two kinds of presumptions:

A. Conclusive presumptions: These are presumptions that the trier of fact must apply, if the predicate fact is shown. One such example is the blood alcohol presumption discussed above: Once the predicate fact (the blood alcohol level) is proved, the accused person cannot attempt to overcome it by offering proof that he was, at the time, perfectly sober. (Strictly speaking, a conclusive presumption is no presumption at all; it is a rule of law. But the terminology has survived for many decades, and is so familiar to most lawyers, that it is repeated here.)

B. Rebuttable presumptions: These are presumptions that the trier of fact should apply, but a party may offer evidence to rebut them. Familiar rebuttable presumptions include the presumption that a letter once mailed was delivered in due course, and the presumption that a person not heard from for seven years is dead. The key concept here is that the inference to be drawn from the presumption still is to be drawn, unless some evidence points to a contrary conclusion.

Among the more important skills for a trier-of-fact is to be able to distinguish “argument” from “evidence.” At the conclusion of most hearings, a party or his/her counsel will make a statement regarding why a penalty should not be imposed. That statement is the party’s “argument” or assertion as to why the sanction shouldn’t be levied. Many arguments sound convincing because if every statement in the argument were true, indeed the penalty probably should not be imposed. But in order to avoid the penalty, there must be evidence in the record of the hearing to support every statement made in the party’s argument. The argument cannot be assumed to be true. There must be an element of proof for every assertion made in the argument.

Certain types of incorrect arguments are referred to as “fallacies” because they flow from an error in logic. Some of these fallacies are so common that they have been identified, labeled and categorized. Some (not all) identified fallacies are listed below:

A. Fallacies of Language and Rhetoric The make-up of languages is such that the meaning of a writer or speaker is often uncertain or unknown due to the vagueness or ambiguity of the terms, expressions or sentence structure used.

1. Vagueness: A word, phrase or sentence is vague when, in context, its meaning of range of application is unclear.

2. Ambiguity: A word, phrase or sentence is ambiguous when, in context, its meaning or range of application is unclear.

B. Formal Fallacies Formal fallacies are arguments containing errors in logic that are evident from the argument’s structure:

1. Anecdotal fallacy: using a personal experience or an isolated example instead of compelling evidence related to the event in question.

2. Appeal to probability: a statement that takes a fact for granted because it could be or might be the case.

3. Argument from fallacy: assumes that if an argument for some conclusion is fallacious, then the conclusion is false.

C. Informal Fallacies Informal fallacies are arguments that are false due to the argument’s content.

1. Appeal to stone: dismissing a claim as absurd without demonstrating proof of its absurdity.

D. Fallacies Known as False Causes

1. To Treat As the Cause What is Not the Cause

This is simply incorrectly identifying an object or concept as the cause for something else, intentionally or unintentionally.

2. Afterwards, Therefore Because (Post Hoc Ergo Propter Hoc)

This common form of a false cause fallacy occurs when an event is taken to be the cause of another simply because the former event preceded the latter.

E. Red Herring Fallacies

A red herring fallacy is intended to be misleading or order to make irrelevant or false inferences.

1. Ad hominem fallacy: an argument that attacks the opponent arguing the opposing point of view instead of attacking the argument the opponent made:

a. Poisoning the well: adverse information about a witness or other source of evidence is presented with the intention of discrediting everything that came from that source.

b. Abusive fallacy: argument turns into verbal abuse of the opponent rather than arguing about the originally proposed argument.

2. Appeal to authority: where an argument is asserted as true because of the position or authority of the person purported to support the argument.

3. Appeal to accomplishment: where an argument is deemed either true or false based on the accomplishments of a person.

4. Appeal to consequences: this argument is based on the premise that some positive or negative consequences will result from a course of action in an attempt to distract from the issues in question.

5. Appeal to emotion: argument made to manipulate emotions.

a. Appeal to fear: specific appeal to emotion by increasing fear and prejudice towards the opposing position. b. Appeal to flattery: flattery is used to gather support for position. c. Appeal to pity: inducing pity to sway opponents.

So You Say: Demonstrated Facts v. Unsupported Assertions © 2017 Ipse Dixit Publications 2017 National Association of Hearing Officials Professional Development Conference Page 6 d. Appeal to ridicule: presenting opponent’s argument in a way that makes it appear ridiculous. e. Appeal to spite: exploiting people’s bitterness or spite toward opposing party. f. Wishful thinking: urging a decision be made in accordance with what might be pleasing to imagine, rather than according to evidence or reason.

6. Appeal to motive: premise dismissed by calling into question the motives of its proposer.

7. Appeal to novelty: proposition is claimed to be superior or better solely because it is new or modern.

9. Appeal to wealth or poverty: assertion that adverse conclusion cannot be reached because arguer is either poor or wealthy.

10. Appeal to tradition: conclusion supported solely because it has long been held to be true.

11. Argument ad baculum: an argument made through coercion or force

13. Argument ad populum: appeal to widespread belief or majority opinion; proposition is claimed to be true because many people believe it to be so.

14. Bulverism: asserting that the origin of an idea comes from a biased mind; therefore, the idea asserted must be a falsehood.

15. Fallacy of relative privation: dismissing an argument or complaint due to the existence of more important problems in the world, regardless of whether those problems bear relevance to the initial argument.

16. Genetic fallacy: conclusion is suggested based on someone’s origin rather than its current meaning or context.

17. Pooh-pooh: dismissing an argument as unworthy of serious consideration.

18. Straw man fallacy: argument based on misrepresentation of opponent’s position.

19. Tu quoque: argument that position is wrong and should be disregarded because its proponent doesn’t consistently in accordance with that position.

20. Two wrongs make a right: occurs when it is assumed that if one wrong is committed, another wrong will cancel it out.