STANDARD OF PROOF IN THE COURT OF PUBLIC OPINION

Ever since the Harvey Weinstein accusations broke, we have been inundated with people coming forward with allegations of sexual misconduct against powerful people. Perhaps most significantly, last week saw allegation against Alabama Senatorial Candidate Roy Moore and sitting United States Senator Al Franken. I have been struck by how people’s politics have seemed to inform the gravity and credibility they attach to the accusations against these politicians, but that is a topic for another day. Today, I would like to talk about a common misnomer that I hear in the context of allegations that play out in the court of public opinion. Namely, when people are giving credibility to allegations made outside of a court of law, I often hear people who are coming to the defense of the accused insisting that everyone is entitled to the presumption of innocence and that the allegations have not been proved beyond a reasonable doubt.

People in particular like to use this as a rejoinder to me, “aren’t you a criminal defense attorney? What happened to proof beyond a reasonable doubt and the presumption of innocence?” Let me make this as simple as I can from the outset, the standards of proof and presumptions we employ when the stakes are depriving a human being of their liberty are very different than the standards I use to make decisions in day to day life and in deciding who I think is fit for the honor of public office.

While I certainly appreciate some of my friends new found insistence on and appreciation for proof beyond a reasonable doubt and the presumption of innocence, the argument that these standards are not even used in the legal system outside of criminal trials.

In a civil trial, where hundreds of millions of dollars can be at stake, sometimes even billions, the standard is simply the preponderance of the evidence, meaning whichever side has convinced you that there case is the better one wins.

None of the public figures being accused (other than Bill Cosby) currently have their freedom at stake. Roy Moore and Al Franken have nothing more than their jobs (or desired job in Moore’s case at stake). Should any of these people ever be charged criminally (as it seems may be a possibility for Harvey Weinstein), he would be entitled to the same Constitutional protections as any other criminal defendant, but that does not mean he or any of the others are entitled to these protections in the court of public opinion.

Is it reasonable to have some doubts about Moore or Franken’s culpability or the extent thereof? Sure. These are allegations about old conduct and politics are most certainly at play. But I am not suggesting these allegations are sufficient to send either man to jail. I do believe both are serious enough that I would not vote for either.