Lake v Hobbs: Hearsay and not much more

The “clear and convincing” burden of proof is a much higher burden of proof than the “preponderance of the evidence” used in most civil cases, but much lower than the “beyond a reasonable doubt” standard normally applied in criminal cases. Most folks consider the preponderance of evidence standard to be 51 percent likely, or simply “more likely than not.” The “beyond a reasonable doubt” standard is closer to 98% or 99% likely, or just plain way, way more likely than not likely. The “clear and convincing” standard is in between. I do not know that saying you must prove something to be 75 percent more likely than not is correct in order to meet that burden, but you get the idea.

What difference does it make? Lots of difference. Here’s how. Much of Lake’s case was hearsay. Ms. Honey relied on what another person said in an affidavit about ballots being added to the stream of ballots by Runbeck employees without a chain of custody for them and in violation of law. She did not see this happen with her own eyes. Defense counsel was unable to cross examine the person who allegedly saw the deed take place.

Freshman law students will tell you those statements were not made in person inside the courtroom, were not subject to cross examination at trial, and are hearsay on their face. In general, hearsay statements are not admissible in a trial. The law of evidence favors testimony limited to what witnesses saw or experienced themselves and not what somebody else told them.

Hearsay can be admitted as evidence at trial if an exception to the hearsay rule of exclusion applies. In a case tried to a judge, the judge can admit such statements but should give those statements only the weight the judge feels they deserve. In a trial where the plaintiff must meet or exceed the “clear and convincing” standard of proof, hearsay statements, no matter how sexy or juicy, may not get the job done.

[Clifford’s analysis explains why the “sexy and juicy” headlines coming from daily testimony didn’t lead to a “sexy and juicy” result. The foundation for those claims looks weak at best when seen through the prism of the law and evidentiary standards. — Ed]