Saturday, November 28, 2020

Highly Recommended: A Primer On Burden Of Proof

With all this talk about evidence and proof with regard to all the different suits alleging voter and election fraud, Andrea Widburg has written a very nice primer on how burden of proof issues apply in these cases: The burden of proof should favor Trump in election fraud litigation. I highly recommend it to anyone who needs a refresher on this crucial topic.

Widburg's starting point is this very important Trump tweet:

Widburg frames her explanation as a metaphor on a game of tennis:

Imagine that the plaintiff and the defendant are on opposite sides of a tennis court. The plaintiff serves first.

With that first serve, the plaintiff has to get his evidence – his proof about the facts he’s alleging -- over the net onto the defendant’s side of the court. If the case requires only a preponderance of evidence, the evidence just needs to clear the net. If the standard is clear and convincing evidence, it needs to go about halfway onto the defendant’s side of the court. And if the plaintiff must prove something beyond a reasonable doubt, evidence must go to the furthest edge of the defendant’s side.

Since these are not criminal cases, we can ignore that last part about "beyond a reasonable doubt."

How about the defendant, the Dems? In terms of Widburg's tennis metaphor, the Dem return just needs to get over the net--but how does that work? This is how:

He can show that the plaintiff’s evidence is factually incorrect (lies or mistakes) or he can introduce more compelling counter-evidence.

If the defendants can’t do even that much, the plaintiff made his case and the defendant couldn’t rebut it. The judge can immediately rule in the plaintiff’s favor.

However, if the defendant got his evidence over the net, the plaintiff has one more volley. He can prove that the defendant’s evidence is incorrect (lies or mistakes) or produce counter-evidence that’s more compelling.

This is where a significant twist enters into play. What would be compelling counter evidence? Evidence that would show Trump's allegations are incorrect? Well, in election cases paper trails and electronic trails are supposed to be generated and retained--precisely as evidence for use in settling disputes. All the Dems need is to present that evidence.

The twist is that so far the Dems, who control the elections in the disputed locales, are refusing to produce that evidence. Worse, there are allegations that they are destroying that evidence. The law has a way of dealing with destruction of evidence. In a criminal case, destruction of evidence can lead to obstruction charges. In a civil case, that's handled by what's called the "doctrine" of spoliation. This doctrine could lead to a presumption that the evidence destroyed by the defendant would have been favorable to the plaintiff. In that case the burden of proof for the Dems would be essentially insurmountable--thus Trump's tweet. Powell and others are, in fact, alleging exactly this--that evidence has been and is being destroyed.

Few things in law are simple, however. In 2015 the Federal Rules of Civil Procedure were revised. I can't speak for what would happen in all the different state courts, but Powell is certainly seeking to get her case heard in federal court. Here's what the new Rule 37(e) says:

(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

As you can see, subsection (1) presents a bit of a hurdle. Will the measures "no greater than necessary" in an election case lead straight to the serious sanctions of subsection (2)? In these election cases my guess is that there is good news for Trump, in that the allegations of fraud were made almost immediately, and in many cases even before the states in question were "called" for Biden--much less certified. I believe the negative presumption would apply. I doubt that the results would be significantly different in any of the state courts.

In any event, read Widburg's primer. I think you'll find it enlightening.


  1. Getting it over the net includes establishing that the remedy would overturn Biden's supposed election. Which the relatively conservative 3rd circuit in its rejection of appeal said was not achieved. Can SCOTUS legitimately get that ball over the net?

    1. I read it quickly, but I think the Third Circuit served up a big juicy homerun pitch to SCOTUS. In Bush v. Gore, the Court said, in essence, that if one voter's vote is treated differently than another voter's vote in a state, it creates an equal protection issue. The Third Circuit essentially acknowledged that mail-in voters in Republican-leaning counties were held to the standard established by PA law whereas mail-in voters in Democrat-leaning counties were permitted to cure deficiencies in a manner not authorized by PA law. The Third Circuit focused on voters in each particular county and said (in essence), "Republicans in this Democrat-leaning county were treated the same way as Democrats in this same Democrat-leaning county. QED, there is no equal protection issue." But, that ignores the fact that we elect a president by state, not by county. So the EP problem exists across the state even if everyone in a single county was treated equally. And, if you do this on a statewide basis and conclude that mail-in votes in Delaware County, for example, cannot be counted, then it indeed affects the result. Or, if you say that there is no way to cure this and therefore the election cannot be certified (or that electors based upon the certification cannot be appointed), it also affects the result.

      Andy S.

    2. That's my impression too, Andy. In the opinion they say that, hey, PA is very lax so it's all up to the counties how they apply the law. Words to that effect. But that, as you say, is a very real EP problem. And, after all, this is a national election, not a county one.

    3. Good point Andy thx. As Bush vs Gore turned on this, is the 3rd circuit intentionally punting to SCOTUS by not addressing this? Seems so.

  2. Lawyers will lawyer. All I know is that Dr. Navid-kesharvaz-nia's affidavit is the pebble in the windshield of this fraud. Now watch the cracks!

    1. I mean, for example, every single Fantasy Sports participant in the country is quite well read in to how a fraud of this nature could work, manipulation of the data or cheating by the actual players. Every participant is familiar with the point allocations and the math and a computer system's ability to manage all the data with an extraordinarily high degree of integrity in real time. These concepts are not beyond the grasp of normal users.

  3. Mark, I agree with you (and Widburg) that it would appear (based on the kinds of evidence offered in Sidney Powell's complaints) that Trump will be able to establish evidence of fraud and/or other election irregularities and illegalities.
    And I agree that it will be hard for Biden (and/or state election officials) to overcome Trump's proof where state officials have destroyed records.

    As is so often the case, Trump's tactical instincts are superb (but it also helps to be on the right side of the controversy).

    PS I think you meant to refer to the federal rules of civil procedure...not criminal procedure...

  4. Early win for Dems in my view because destruction of evidence that would clearly prove your fraud takes that eventuality off the table. Now you get to argue in court about overturning the “will of the people” and set the stage for riots and violence if you lose-as you should. But that is the process they have fine-tuned and going with. This has been planned for a long time. Getting one of the main players to flip would obviously be significant and spare the country another horrible few months. I remain hopeful that Barr is waiting for the right moment to pounce with major evidence but he is playing at the edges by waiting much longer.

    1. "Early *win* for Dems in my view because destruction of evidence that would clearly prove your fraud takes *that* eventuality off the table.
      Now you get to argue in court...."

      Meaning, takes that eventuality *off* the table, in the minds of Leftist jurists, and superficial SJWs?
      If that's all the Dems have here, that's not a very strong hand.
      They'd have whined about overturning the “will of the people” anyway.
      Unless you mean to drive at some extra consideration.

    2. The extra consideration is that except for the extremists there is a big difference between whining and violence. You can whine all you want-I don’t care. Using the defeat to take to the streets because the conclusive evidence has been destroyed and “you can’t prove it” is what concerns me. I still have hope that there is a segment on the left that can be convinced with the right evidence. Also see comment below re liberal judges saying evidence is not quite enough-appeal denied.

    3. "hope that there is a segment on the left that can be convinced...."
      My guess is, there is such a segment, at least among moderate liberals, esp. if Keshavarz-Nia's stuff about China holds up.
      Such moderates may well shrink from covering for antiFa etc., esp. if Righties rub Dem noses, into Righty determination to resist becoming slaves of the ChiComs.

    4. I've come to the conclusion that 'against the will of the people' is the optimal state, as opposed to a substandard one.

      For four years, Trump has played nice. He let the RNC into his administration, he held fire vs Ryan, McConnell et al. Even recently, right before the election, he faintly praised Barr, saying the Dems are lucky he's a good man at heart and not vindictive.

      In the meantime, the Dems do their best to rub our faces in every setback and defeat we face. It's time to call it what it is - a cold civil war. And we win through power, by obliviating our foes. There is no common ground anymore.

      In such an environment, Trump has a better chance at succeeding when he 'does not' have a mandate. Instead, he uses pure power politics and the rule of law to achieve our goals.

    5. You sound a bit like Don Surber. He's saying: No more Mr. Nice Guy, because that's what he's been.

  5. Thank you for putting this up, it goes back to my post yesterday on Navid-kesharvaz-nia's affidavit where he is making it pretty clear you're not going
    to be able to see the MITM changes made but you're also not going to have the proper audit materials available because of the changes.

    In the end of my post I was questioning how that was going to run out in court as it would seem to enter a quagmire.

    The short answer is if the statistical evidence is accepted showing there was electronic manipulation team Biden is up against producing audit logs to counter the claim. Navid-kesharvaz-nia is saying those logs will not exist. Under federal rules, that becomes a easy win.

    That explains why you keep seeing these liberal judges toss these cases without even looking at the evidence. They know the standards and if they let it eek into the doorway they know the result.

    1. "That explains why you keep seeing these liberal judges toss these cases without even looking at the evidence. They know the standards and if they let it eek into the doorway they know the result."

      This! That is what the Democrats are now desperate to stop- any examination of the materials that is supposed to exist to be able to audit the election on any level. I have written it before- if the Republicans get to examine the absentee envelopes, for example, or the registers keeping the records of when absentee ballots were mailed out, how many were mailed out, and to where they were mailed, and when they were received back from the voter will be found to have massive, truly massive discrepancies or not exist at all. This is why you see the anomalies like the state of Pennsyvania not having an accurate count in the #s mailed vs counted- things fall through the cracks when you are in a rush, or are delegating actions to too many people, few of whom are terribly bright. This also goes back to the pre-election efforts- all the fake names that are now disappearing from the Pennsylvania rolls of people who supposedly requested and returned a ballot- this will lead to another discrepancy- the numbers of registered voters will suddenly not match up to the numbers of mailed in ballots that are actually recorded properly.

      In my fantasies, all these Democratic county election offices are now under covert surveillance and have been since November 4th, and they are being allowed to hang themselves. I ain't holding out too much hope on this fantasy, but it is a possible reality- it is the sort of thing I would do were I a prosecutor- easy to build the most solid case if one is more patient than the adversary.

  6. This is a positive step:

    Tom S.

  7. I have been saying for a few weeks that the amount and quality of the evidence of fraud has shifted the burden of proof to the Democrats.

    Meeting that burden is impossible.

  8. Liberal judges in the lower courts may pretend fraud has not been proven, but the five conservatives on the SCOTUS will not be convinced.

  9. Dam Man I Love this site!
    Of all the volumes of internet material I have read over the years, I can say this is the first place I 'really' learn something,

    Interestingly, my History Master's Thesis many years ago dealt with: 'Is there any meaning in the study of history or is it just an aesthetic?

    Thanks to all!

    1. Ditto. Kudos and abundant thanks Mark, for all you do!

    2. Ditto here too.
      "Is there any meaning in the study of history or is it just an aesthetic?"
      Anyone seriously suggesting the latter should be dismissed out of hand.