In Evaluating Credibility, the Signs Point in Brett Kavanaugh’s Favor

It’s always a good idea, in politics, to evaluate accusations against your friends as if they were made against your enemies, and to evaluate accusations against your enemies as if they were made against your friends. That doesn’t mean you never give your friends some benefit of the doubt, but it does mean you should have some general principles and guideposts for making sense of charges and counter-charges that don’t change based on the R or D after the names. Or better still, ask, “How would I evaluate an explosive allegation if I had no dog in the fight?” Try doing that with the allegation by Palo Alto University psychology professor Christine Blasey Ford that Judge Brett Kavanaugh attempted to rape her at a high-school party in or about 1982, when Kavanaugh was 17 and Ford was 15.

There are two unfair and irrational ways to look at this allegation. One, of course, is simply to decide that because you already opposed or supported Kavanaugh, that should determine whether you think the charge is true (or useful). That’s the partisan route, and it treats individuals caught up in political fights as fungible and disposable parts.

The other is to decide that, because the allegations remind you vaguely of some charge in the past that turned out to be true, or false, or because you want accusers to generally be believed, you should just decide the same has to be true hereregardless of the particular facts. Down that path lies the line of reasoning that says, “A guy this color mugged me once, so they must all be criminals.” It may serve Democrats’ political purposes to make this a referendum on all sexual-assault charges by all women, but of course they don’t believe it themselves — they would not do that if this were a valued member of the Democratic team such as Bill Clinton, Keith Ellison, or Sherrod Brown.

The particular facts always matter in particular cases; nothing is more essential to the work of lawyers than to understand this. Facts are stubborn things. In evaluating the charge against Kavanaugh, we should first ask how serious it is, and then how credible it is. The tools we should use are the same ones we would use regardless of who the accused and the accuser are. And we should also look at how the various participants in this controversy are acting, as that can tell us something about what they believe the truth is.

How Serious Is the Charge?

The first issue here is that the charge against Kavanaugh is about something he is claimed to have done when he was 17 and drunk. This is, as many have noted, a dangerous path to go down in evaluating public servants. Up to a point, I have a problem with resurrecting such things, and the standard for reviving them against adults should be very, very high. Teenagers in general and teenage boys in particular do a fair number of stupid, rude, and inappropriate things, and doubly so when drunk, horny, and in the presence of the opposite sex. Moreover, public mores placing guardrails on such behavior were at a pretty low ebb in 1982, after two decades of attacks on traditional sexual morality and before the current rethinking of the consequences of the Sexual Revolution and its empowerment of male sexual predation. It would seem sad to take a man who has led an exemplary life for all his adulthood and tear him down over crossing some lines as a teenager after too many beers.

But. But. If we accept every word of Professor Blasey Ford’s allegations, we are not talking about horseplay gone bad or even an inappropriate grope at a drunk-teens party, better left to the mists of youth after the passage of time. Blasey Ford now claims that Kavanaugh, with the assistance of a co-conspirator, attempted to forcibly rape her. That is, rightly, a very serious crime, and one that strikes to the heart of a man’s character. If proven true, it would justify — at a minimum — removing him from his current position on the federal bench, and possibly disbarment and prosecution. I must dissent from Dennis Prager’s view to the contrary.

If you are skeptical of Blasey Ford’s charge, as I am, it may strike you that she has very precisely chosen an allegation serious enough to warrant those consequences, complete with the headline-grabbing line, “I thought he might inadvertently kill me.” It is possible, of course, that something happened that doesn’t match the severity of her description (although Kavanaugh and two other named attendees at the alleged party are denying that any such party ever even happened). But if you accept the truth of the story, the simple fact that Kavanaugh was 17 and drunk would not be enough to justify ignoring it.

If it’s true, it matters. But is it true?

What Is the Nature of the Evidence?

Let’s start with the obvious fact: As is often the case with accusations and conspiracy theories, we may never know the truth; the best we can do is figure out if the evidence we have is enough to justify believing it. In a criminal court of law, that means “proof beyond a reasonable doubt,” but the U.S. Senate is making the decision here about whether to confirm Kavanaugh, and it can apply any standard of proof it wants. The charge is a serious one, but so is the public trust that will be placed in Judge Kavanaugh on the Court. If I were a senator, I would effectively apply the standard we use in civil litigation: proof that makes the event more likely than not.

So far, in terms of evidence, we have statements made to the media by four people in position to have been involved in 1982 (Blasey Ford, Kavanaugh, Mark Judge, and Patrick Smyth), one of whom (Blasey Ford) claims to have passed a polygraph examination (more on that later). While Kavanaugh, Judge, and Smyth have issued formal statements to the Judiciary Committee that would carry a risk of prosecution if they lied, Blasey Ford has not spoken directly to the Senate. We seem to have a statement by a fifth person (Christina King) relating what she says she heard second-hand at the time, plus reported statements by Blasey Ford’s husband and notes taken in 2012 by Blasey Ford’s therapist. Let’s walk through some of the common questions you would ask to test the credibility of this kind of story:

1. Is There Corroborating Evidence?

As David French has ably explained, eyewitness testimony can be notoriously unreliable, and all the more so when relating a traumatic event; we not only have lots of experience with this as lawyers, but also a body of social-science research calling into question the recall of witnesses who are testifying solely from memory. That’s a problem even when you are dealing with totally honest, totally unbiased witnesses, who were not under the influence of alcohol, and are relating relatively recent events.

There is not a shred of hard evidence here to go on here — no documents, no video, nothing of the sort. Blasey Ford admits that “she told no one of the incident in any detail” for three decades, so there are also no witnesses anywhere close in time to the events who could say that her story has been consistent over time.

The Facebook post circulated Wednesday morning on Twitter by King (and subsequently deleted from Twitter “because it served its purpose”) purports to provide corroborating evidence, from someone who was “a year or so” ahead of Blasey Ford in high school and who knew Mark Judge then, that “This incident did happen. Many of us heard about it in school and Christine’s recollection should be more than enough for us to truly, deeply know that the accusation is true.” But even assuming that King’s social-media post accurately reflects her background, it is at best hearsay of hearsay — she says she heard about it, but not from whom or when, and she now refuses to do any further media interviews on the grounds that “I do not have first hand knowledge of the incident that Dr. Christine Blasey Ford mentions” and “I don’t have more to say on the subject.” She basically admits that she was already opposed to Kavanaugh’s nomination and is just asking the reader to believe Blasey Ford on the basis of what their high-school environment was like. It’s very unlikely that this sort of thing would be admissible evidence in court, and given her refusal to speak further, the Senate shouldn’t give it much credibility.

[UPDATE: King now says “That it happened or not, I have no idea…I can’t say that it did or didn’t” and knows only about “a ‘buzz’ that went around the weekend of the party in question about an alleged incident involving students from her school and Kavanaugh’s” – so, nothing specific to Kavanaugh himself.]

Read more