Boss emeritus: Overturning burden-of-proof precedent "so dangerous"

Indeed it is, and our boss emeritus Michelle Malkin did a fine job of pointing out why in a passionate appearance on Fox & Friends this morning. After first pointing out the “selective belief” of women by Democrats — anyone hearing Maizie Hirono talking about Karen Monahan and Keith Ellison? — she makes an even better point about the fact that sometimes people do lie when making allegations. That is why the burden of proof has to remain with the accuser, Michelle argues, and it is “so dangerous” to shift it to the accused:

One doesn’t need to even get to malice in order to defend the presumption of innocence and the traditional burden of proof, however. Witness statements, even contemporaneous to the crime, are not entirely reliable — and get much worse over long periods of time. The Innocence Project, which primarily uses DNA evidence to reverse unjust convictions of innocent people, keeps statistics on the reversals they win. In 70% of those cases, eyewitnesses (including victims) misidentified the perpetrator, and a third of those cases involved multiple eyewitnesses being mistaken.

It’s for that reason that TIP wants significant reforms to witness identification procedures, noting that the science of witness reliability shows a serious problem, especially over time:

In 1907, Hugo Munsterberg published On the Witness Stand, in which he questioned the reliability of eyewitness identification. When Yale Law professor Edwin Borchard studied 65 wrongful convictions for his pioneering 1932 book, Convicting the Innocent, he found that eyewitness misidentification was the leading contributing factor of wrongful convictions.

Research illustrates that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. In eyewitness identifications, witness memory is impacted by a variety of factors that occur from the time of the crime onwards, and their memories can be easily contaminated.

Hundreds of scientific studies (particularly in the last three decades) have affirmed that eyewitness identification is often inaccurate and that it can be made more accurate by implementing specific identification reforms.

That’s a big reason why the presumption of innocence should remain with the accused and the burden of proof with the accuser in criminal matters. But that’s the proper moral standard in the broader culture as well, I argue in my column at The Week, as it’s the only standard which prevents character assassinations from gaining traction — and the erosion of public service that will follow:

Some have argued that America’s tradition of justice — that we must presume innocence until guilt is proven — shouldn’t apply to this case because the only consequence of forcing Kavanaugh to prove a negative is that he won’t get the Supreme Court job. “But what if it’s true?” people ask, arguing that the mere allegation has somehow changed the nature of the person nominated, even if the charge is unproven.

Former Vice President Joe Biden argued explicitly for this standard whenever allegations involve prominent men. “You’ve got to start off with the presumption that at least the essence of what she’s talking about is real,” Biden told reporters on Monday, “whether or not she forgets facts, whether or not it’s been made worse or better over time.” This, however, sets up a dangerous double standard for public service that presents a threat to rational governance as well as to our tradition of justice.

Shifting the burden of proof on Senate confirmations, appointments, and elections changes all the incentives for public service. If we are not to evaluate claims on “facts” in order to determine whether the “essence” actually is “real,” then what should form the basis of our evaluation? Whether or not we like the accused? Which party does he or she represent, or which party appointed him?

This is not a recipe for justice, but instead an environment for bare-knuckled politics and a breeding ground for a return to Salem circa 1692. Such an environment will repel men and women of goodwill and good character from public service, incentivizing only the most insensitive and impervious personalities to choose to serve. That will lead to even further degradation of public discourse and an erosion of trust in institutions, which will make witch hunts and smear campaigns even more likely.

That doesn’t mean that public officials should get a “beyond a reasonable doubt” standard before they get denied appointments. No one’s arguing for a “Vote For Bob — He Beat the Rap!” bar of expectations for public officials. However, it should mean that allegations without corroborative evidence should be discounted entirely, especially when they lack specific details necessary to determine whether the alleged incident took place at all, and whether it’s being portrayed accurately through the mists of time.

It helps, too, if allegations didn’t emerge during a highly partisan and overly bitter process that hadn’t already run off the rails. Michelle makes a pretty good point here, too, in explaining why Democrats would want to dispense with burden-of-proof traditions in this case, which in itself presents an excellent case for their value. The political hysteria from the nomination of a twelve-year appellate jurist to the Supreme Court practically begged for a witch hunt — and might have produced one.