Evidence of the Law: Proving Legal Claims

Evidence of the Law

Evidence of the Law

Proving Legal Claims

GARY LAWSON

THE UNIVERSITY OF CHICAGO PRESS

CHICAGO AND LONDON

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

© 2017 by The University of Chicago

All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission, except in the case of brief quotations in critical articles and reviews. For more information, contact the University of Chicago Press, 1427 E. 60th St., Chicago, IL 60637.

Published 2017

Printed in the United States of America

26 25 24 23 22 21 20 19 18 17    1 2 3 4 5

ISBN-13: 978-0-226-43205-2 (cloth)

ISBN-13: 978-0-226-43219-9 (e-book)

DOI: 10.7208/chicago/9780226432199.001.0001

Library of Congress Cataloging-in-Publication Data

Names: Lawson, Gary, 1958– author.

Title: Evidence of the law : proving legal claims / Gary Lawson.

Description: Chicago ; London : The University of Chicago Press, 2017. | Includes bibliographical references and index.

Identifiers: LCCN 2016016099 | ISBN 9780226432052 (cloth : alk. paper) | ISBN 9780226432199 (e-book)

Subjects: LCSH: Evidence (Law)—United States. | Evidence (Law)—Philosophy. | Evidence.

Classification: LCC KF8935.L39 2017 | DDC 347.73/6—dc23 LC record available at https://lccn.loc.gov/2016016099

This paper meets the requirements of ANSI/NISO Z39.48-1992 (Permanence of Paper).

Contents

INTRODUCTION

CHAPTER 1. The Formal Structure of Proof

CHAPTER 2. Proving the Law

CHAPTER 3. Proof in Interpretation

CHAPTER 4. Understanding Indeterminacy

CHAPTER 5. Building the Imperfect Evidence Set

CHAPTER 6. Stipulating the Law

CHAPTER 7. Selecting Standards of Proof

Acknowledgments

Notes

Index

Introduction

One of the central concepts in law—both in legal practice and in legal theory—is the concept of proof. In a courtroom, it does no good to have the truth on one’s side unless one can convey that truth in a fashion that convinces decision makers and complies with the legal system’s formal, and informal, norms for the presentation of arguments and evidence. Of necessity, the law is not primarily concerned with what is. The law is primarily concerned with what can be proven to be in accordance with the law’s internal norms for proof.

This book is about the idea of proof. At one level, it is a functional analysis of that term as it is employed in the Anglo-American legal system. At another level, it is a conceptual analysis of that term as it must be employed in all cognitive endeavors, in any discipline and in any context. And at a third level, it is an exploration of a puzzle regarding one particular—and peculiar—way in which the Anglo-American legal system handles the idea of proof.

Ask a lawyer to explain how proof works in the law, and there is a very good chance that the lawyer will start talking about mechanisms for establishing claims that legal conventions describe as factual. There are good practical reasons for this focus. The law prescribes, through the rules of procedure, formalized methods for gathering information about facts—methods that supplement rather than supplant informal fact-gathering methods that are also available. It further prescribes formalized rules of evidence for the use of factual information in legal disputes; not everything about facts that is gathered is allowed to be considered by legal decision makers. Law schools exhaustively teach these rules through courses in, inter alia, Evidence, Civil Procedure, and Criminal Procedure. All of these mechanisms for gathering and utilizing information are oriented around the proof of a class of propositions that the law labels factual: claims about what did or did not happen in the world, about processes of causation, about human motivations and behavior, and the like.

Those factual claims have no legal meaning until they are integrated into a world of legal claims that give those facts operative significance. Legal propositions are empty without facts, and factual propositions are legally ineffective without law.

The great puzzle that prompts this book concerns the very different ways in which the Anglo-American legal system treats the proof of factual and legal propositions. The process for establishing legal claims is much less formalized than is the process for establishing factual claims. There is no explicit set of rules for determining what counts toward legal meaning or for gathering materials for that determination. Law school Evidence classes do not spend much energy on how to prove propositions of law. Indeed, if one asks a lawyer how he or she goes about proving the law, there is a good chance that one will get a wry smile in response. One simply does not talk about proving the law, the wry smile conveys. The law just is not the sort of thing that one proves.

This book argues, to the contrary, that the law emphatically is the sort of thing that one proves—and indeed that the law must be an object of proof as a matter of epistemological necessity. If a legal system does not prescribe formalized rules for proof of legal claims, that absence does not mean that proof of legal claims is not happening. It just means that the norms of proof are operating in the background or hiding in the shadows. My goal is to bring those norms for proof of law into the light, exposing along the way some often-unexamined features of the idea of proof that bear as well on the proof of facts in law.

More broadly, this is a book about the general structure of proof, how law sometimes recognizes that structure, how it often does not, and what might happen if legal scholars, jurists, and lawyers think about that structure in unfamiliar contexts. The book applies that formal structure of proof to law rather than to other disciplines, for the simple reason that I am a legal scholar trained in law. If I were a historian, a literary theorist, or a nuclear physicist, I would probably be writing a book about how the structure of proof applies in those fields. As it happens, law is an especially fruitful avenue for exploring these ideas precisely because, at least with respect to proof of facts, the law sometimes thinks self-consciously about some of the abstract features of proof and how they bear on decision making. But I believe that the structure of proof that I discuss here is universalizable to any cognitive endeavor. In sum, this is a book about the formal structure of proof, how that structure applies to distinctively legal arguments, and how considering that structure can at least sometimes lead to clearer thinking and reasoning.

To make these abstract considerations a bit more concrete, consider an example that is loosely based on the 2014 U.S. Supreme Court decision in Abramski v. United States.¹ As with most of the examples that I employ in this book, this one involves interpretation in a public law context—in this instance statutory interpretation. To be clear: I have chosen examples primarily from constitutional and statutory interpretation simply because those are the fields in which I have worked most closely. If I had taught and written about contracts, torts, or real estate law for the past quarter century, I would likely be using examples drawn from contracts, torts, or real estate law. Nothing in the choice of examples should be taken to suggest that the framework that I describe is limited to the contexts of those examples.

With modest exceptions, a federally licensed firearms dealer may not sell a firearm to a person who does not appear in person at the licensee’s business premises.² Before making a sale, the dealer must perform a background check on the customer to make sure that the would-be purchaser does not fall within one of the many federal statutory grounds for ineligibility to acquire a gun.³ The purchaser must fill out Form 4473, which requires the purchaser to provide identifying information, affirm that he or she is eligible to acquire the gun, and declare that the buyer is the actual transferee/buyer of the firearm(s) listed on this form.⁴ It is a federal crime for the purchaser knowingly to make any false or fictitious oral or written statement . . . with respect to any fact material to the lawfulness of the sale or other disposition of such firearm. . . .⁵

Suppose that Abraham Brucski entered a federally licensed gun store, presented the gun dealer with valid proof of identity, passed a background check that showed his eligibility to acquire a gun, and then purchased a handgun. He subsequently turned the gun over to his uncle, who indisputably would have been eligible to purchase the gun himself had he personally gone to the gun dealership and filled out the requisite forms. At roughly the same time, the uncle gave Brucski a sum of money approximating the price of the gun. On Form 4473, Brucski certified that he was the actual transferee/buyer of the firearm.

The government now contends (1) that the uncle rather than Brucski was the person who was purchasing the gun within the meaning of the statute, (2) that Brucski was simply a straw purchaser for his uncle and therefore made a false declaration when he certified on Form 4473 that he rather than his uncle was the actual buyer of the gun, and (3) Brucski’s false declaration was material to the lawfulness of the transaction because it facilitated an illegal transfer in which the real person to whom the weapon was sold did not personally appear in the licensed dealer’s business premises. Brucski is accordingly indicted and tried for making a false or fictitious oral or written statement . . . with respect to any fact material to the lawfulness of the sale or other disposition of such firearm.

Brucski, in turn, pleads not guilty and raises several claims in defense. First, he disputes the government’s interpretation of the word person in the federal firearms statute, insisting that the person who buys the gun within the meaning of the law is the person who actually pays the money to the dealer, even if that money was supplied by someone else. On this interpretation of the statute, Brucski did not lie when he said that he was the actual purchaser; a lie would have involved giving a false name or otherwise concealing Brucski’s true identity. Second, Brucski argues that even if his uncle was the real person to whom the gun was sold, so that Brucski’s representation that he was the actual buyer was false, that representation was not material to the lawfulness of the transaction because his uncle could have lawfully bought the gun had he appeared in person in the dealer’s shop. No harm, no foul. Third, Brucski disputes the government’s contention that his purchase was really made on behalf of his uncle. The government agrees that if someone buys a gun for his or her own account and then turns around and makes a gift of it to someone else, the original buyer and not the recipient of the gift is the person to whom the statute refers and therefore the actual buyer when the sale is consummated.⁶ Brucski contends, and the government disputes, that the transfer to his uncle was a gift and that any money that might have changed hands between him and his uncle was extraneous to that gift.⁷

In order to convict Brucski of the charged crime, who has to prove what, to whom, and how?

An initial instinctive response to the what and to whom questions (saving how for a bit later) is to say that, because this is a criminal prosecution, the government must prove all of the essential elements of its case beyond a reasonable doubt to the jury in a jury trial or to the trial judge in a bench trial. This instinctive response is contingently accurate in some respects, partially inaccurate—or at least incomplete and ambiguous—in other respects, and spectacularly wrong in still others.

To whom is indeed to a jury or a judge, but that is dependent upon the given information that we are talking about a U.S. criminal prosecution. The American legal system, by constitutional command, prescribes juries or judges—rather than, for example, Justice Department lawyers or state prosecutors—as the ultimate decision makers in criminal cases.⁸ There is nothing inevitable about this assignment of decision-making authority; one can certainly encounter legal systems in which the prosecuting officials ultimately determine guilt. Indeed, even in the United States, administrative adjudication might fit this description on many occasions. The heads of federal administrative agencies are permitted to perform all of the functions in adjudication, including determination of liability.⁹ To be sure, those liability determinations are subject to review in real courts, but the entire adjudicative process takes place without the involvement of a jury, either petit or grand,¹⁰ and the appellate review, as we will discuss in chapter 2, generally gives great deference to the initial agency decision. While administrative adjudication is civil in form, there is a good argument that much of it is actually better understood as functionally (and constitutionally) criminal in nature¹¹—and that over a very significant range of cases the U.S. legal system thus currently allows executive officials not merely to determine who to prosecute but also to determine who is guilty. Brucski’s hypothetical case, however, would clearly be the subject of a judicial trial rather than an agency prosecution, so let us concentrate for the moment on the what aspect of proof, on the assumption that the answer of to whom is indeed a judge and/or a jury.

In court proceedings such as Brucski’s case, the American legal system prescribes that the government bears the burden of proof, in two senses of the term burden of proof. First, the defendant enters the case with a presumption of absence of guilt, which means that the government must put forward an affirmative case of some sort. If both parties show up in court, sit down, and rest their cases without saying a word, the defendant wins without the need for deliberation or consideration by the decision maker. There is also nothing inevitable about that allocation of responsibility for producing evidence (often called the burden of production). One can easily imagine—or, without traveling too far a time and/or distance, easily witness—legal systems in which accused persons are presumed guilty simply by virtue of an official accusation and must therefore affirmatively show their innocence.¹² Second, the American legal system maintains, at a constitutional level, that the government must not merely produce evidence of guilt in order to overcome the defendant’s presumptive innocence but must also produce enough evidence so that a decision maker could find the defendant guilty beyond a reasonable doubt.¹³ Again, there is nothing epistemologically inevitable about this standard of proof—as we will discuss in more detail in chapter 7. But assuming that we are dealing with an American federal criminal prosecution in the early twenty-first century, there is an obvious element of truth to the instinctive claim that the government must prove its case against Brucski beyond a reasonable doubt if it wants a valid conviction.

That element of truth, however, is strikingly limited in at least two important respects. For one thing, much depends on what one means by the government’s case. Conventional American doctrine says that the government must establish, by the prescribed beyond-a-reasonable-doubt standard of proof, each and all of the essential elements of the cause of action.¹⁴ It is not self-evident what constitutes an element of a cause of action for purposes of this obligation of proof. Accordingly, one needs to understand what constitutes the government’s case before one can meaningfully and usefully say that the government must prove that case beyond a reasonable doubt. This problem of identifying the elements that must be affirmatively proved beyond a reasonable doubt has bedeviled American law and legal scholars for quite some time, and we will mercifully pass it by for the rest of this book.

Much more fundamentally, there is a second respect in which the instinctive answers to the what and to whom questions posed above are entirely and completely wrong. Brucski’s defense, one should recall, involved three distinct claims: (1) that Brucski rather than his uncle was the person described in the relevant federal firearms statute and therefore was the actual purchaser of the gun, (2) that any misrepresentation about who was or was not the actual purchaser was not material within the meaning of the specific statute that is the subject of the criminal charge, and (3) that even on the government’s own theory there was no misrepresentation because Brucski’s uncle received the gun as a bona fide gift. The third, but only the third, of these claims is subject to the framework described by the instinctive answer outlined above, requiring the government to convince a jury or trial judge that its version of events is correct beyond a reasonable doubt. The other two claims, involving the meaning of statutory terms, will be argued entirely to the trial judge, even in a jury trial, and the decision about the meaning of the relevant statutes will be made in accordance with a standard of proof quite far removed from beyond a reasonable doubt.

Indeed, it is not entirely clear precisely what the actual standard of proof for those claims of statutory meaning might be—which itself is a rather remarkable statement about a legal system as mature as the body of Anglo-American jurisprudence. The judge will surely say that he or she is determining the best possible reading of the law,¹⁵ but there are many possible understandings of best in this context. It could mean (with no suggestion that this list is exhaustive) that the interpretation put forward by one side is (1) better than the interpretation put forward by the other side, (2) better than any other interpretation that can be imagined, (3) better than the combined likelihood of some combination of other possible interpretations, or (4) correct by some absolute, noncomparative standard. That determination might or might not be shaded by a presumption in favor of Brucski as a criminal defendant, essentially amounting to an assignment to the government of a burden of proof of unspecified dimension.¹⁶ The important points for present purposes are, as stated above, that this determination will be made by the judge even in a jury trial, and it will not be made in accordance with a beyond a reasonable doubt standard of proof. Whatever degree of certainty the relevant decision maker must have with respect to whether Brucski gave the gun to his uncle as a gift will not be the degree of certainty the relevant decision maker must have with respect to whether Brucski was the person who purchased the gun or, if he was not, whether his declaration to the contrary was material to the sale of the gun.

The differences between the law’s treatment of the claims regarding statutory meaning and the claim concerning the circumstances of the Brucski-to-uncle gun transfer are even more dramatic when one focuses on the how aspect of proof. In order to show that Brucski meant all along to serve as a straw purchaser for his uncle, the government will have to navigate a complex system of evidentiary rules that determines what kind of materials the decision maker is allowed to consider in resolving the case. The precise content of those rules is not pertinent here. What matters is that those rules are formalized into a body of instructions called (at least with respect to claims in federal court) the Federal Rules of Evidence,¹⁷ that they force the government’s (and Brucski’s) methods of proof into certain channels, and that those channels foreclose consideration of a wide range of materials that ordinary people would likely consult and rely upon in conducting their own affairs. When arguing about the meaning of statutes, however, the parties are not bound by formal rules of evidence. There is presently no Federal Rules of Statutory Interpretation, although the idea has received some scholarly attention and a significant number of states have enacted rules of statutory interpretation at the local level, albeit with only modest effectiveness.¹⁸ Even with respect to straightforward factual claims about states of the world or historical events that are made in the context of discerning statutory meaning, the formal rules of evidence do not apply. The process by which parties make arguments about statutory meaning is far less cabined than is the process by which they make arguments about, for example, mental states at the time of gun purchases. In the American legal system, the process by which one tries to prove statutory meaning is quite radically different from the process by which one tries to prove what happened in the world.

Seasoned, or even unseasoned, legal observers will find none of this startling or disturbing—or perhaps even interesting. All that I have done, they are likely to think, is to describe in summary fashion the operational difference between questions of law and questions of fact. The Anglo-American legal system has long recognized this distinction and crafted different procedures for addressing questions that fall into one or the other category. Indeed, the distinction between law and fact is so fundamental that it is enshrined in the United States Constitution.¹⁹ There are, the thinking might continue, well-established reasons of policy behind the differential treatment of questions of law and fact, with respect to both prescription of the procedural forms of proof and allocation of decision-making authority. Is this book meant to challenge those longstanding underlying policies and the resulting prescriptions and allocations? And if not, what is the book’s purpose?

It is emphatically not the purpose of this book to argue in any systematic way that the present operation of the American legal system is fundamentally, or even superficially, defective. The book does not prescribe a Grand Theory of adjudication. It does not argue that the legal system must or should treat questions of law and fact identically. It does not recommend the use of specific procedures for proving either legal or factual matters, the employment of specific standards of proof in specific contexts, or the allocation of decision-making authority in any particular fashion. Rather, the aim of this book is to point out that merely describing and reflecting upon the operation of the legal system with respect to proof of different kinds of claims is far more interesting and instructive than may appear at first glance. When one focuses on the nature of proof—not proof of any specific kind of proposition, but proof as an abstract matter—one starts to see some intriguing features (it is tempting to say anomalies, but that would be a normative judgment that I hope to avoid) of the American adjudicative process that are worthy of deep consideration. At least, I believe that they are worthy of far deeper consideration than they seem to have received thus far. The different treatment afforded questions of law and fact with respect to the process of proof has lessons and implications that are critically underanalyzed and underappreciated.

My goal in this book is to convince the reader, not that one should answer questions about appropriate forms and standards of proof exactly the same way when dealing with questions of law and fact, but rather that one needs to ask exactly the same questions in each context. My chief contention is that the American legal system does not always ask those questions, or ask them openly and self-consciously enough, in connection with propositions of law. Once one starts to think about law as an object of proof, and accordingly starts to think about evidence of the law as a necessary and inescapable feature of such proof, that thought process leads down many productive and intriguing roads. At the end of the journey, perhaps one will conclude that the legal system has answered all of the relevant questions in all of the various contexts in precisely the right way. Perhaps we live in the best of all possible worlds. But if that is the conclusion that one reaches, this book will hopefully foster a deeper understanding of those answers and their justifications. My sole, and quite modest, ambition is to provide, or at least to facilitate, that deeper understanding.

Chapter 1 lays out the basic problem and framework at a very abstract level by highlighting the difference between the law’s self-conscious structures for proving factual and legal propositions.²⁰ It describes the formal structure of proof for facts in the law as involving principles of admissibility (what counts toward establishing a claim), principles of weight or significance (how much the admissible evidence counts toward establishing a claim), standards of proof (how much total admissible evidence one must have in order to establish a claim), burdens of proof (how one makes decisions in the face of uncertainty), and principles of closure (when one can stop looking for more information and declare the evidence set closed). It suggests that this formal structure for proof of facts—not the particular determinations that American law has chosen to make but the formal structure itself—is a special case of a broader point about the nature of proof. That is, the questions that the law asks in connection with proof of claims that are classified as factual, such as Did Bruscki intend to make a gift to his uncle?, are questions that must be asked with respect to proof of any claim in any discipline.

Chapter 1 concludes by showing that legal claims, such as Was Bruscki or his uncle the ‘person’ who purchased the gun under the federal firearms laws?, are propositions that are epistemologically identical—and by that I mean nothing more (or less) than identical with respect to the application of the formal structure of proof—to so-called factual claims under virtually any plausible theory of law, whether positivist or natural-law oriented. Any distinction that is drawn between propositions of fact and propositions of law is purely conventional and is ungrounded in anything metaphysically or epistemologically significant. That does not make the distinction between law and fact trivial, unwise, unjustified, or indeed deserving of any adjective other than conventional. It is not my aim to criticize the law for drawing this distinction. My aim is only to point out that basic norms of epistemology apply to legal propositions in exactly the same way that they apply to factual propositions, regardless of the conventional labels that we choose to apply to those propositions.

The framing discussion in chapter 1 potentially gives rise to some misconceptions about both the goals of this book and the presuppositions of my analysis, and I hope to clear away those possible misconceptions right now. To say that propositions of law and propositions of fact are epistemologically equivalent is not to say that there is no justification for treating them differently in adjudication; it is only to say that such justification must be grounded in policy rather than epistemology or metaphysics. To say that propositions of law and propositions of fact are epistemologically equivalent, and therefore amenable to analysis under the same formal structure of proof, is not to say anything about how that formal structure of proof can or should be filled out in practice for either kind of proposition; it says that there must be answers to certain questions but not what those answers must contain. To say that propositions of law and propositions of fact are epistemologically equivalent is not to endorse a version of legal positivism. That claim, as with virtually all of the claims in this book, is neutral across almost any theory of legal metaphysics. (For the record, if the reader is wondering, I consider myself a natural lawyer, though I do not believe that that commitment affects much of anything in this book.) To say that propositions of law and propositions of fact are epistemologically equivalent, and to draw out the implications of that equivalence, does not require any engagement with deep, or even shallow, normative theory. (That is good news, because I do not consider myself to be a deep, or even shallow, normative theorist.)

In sum, this is a book about the nature of proof and how it affects what the law regards as knowledge, not about legal policy, legal metaphysics, or normative theory. There is much to be learned by thinking as a lawyer about evidence of the law, and that is precisely what I hope to do here.

Chapters 2 and 3 try to make this abstract discussion about the nature of legal proof more concrete by showing some applications and consequences of viewing proof of law as something epistemologically equivalent to proof of fact. Chapter 2 describes the very limited extent to which American law—and scholarship—explicitly applies principles of proof and evidence to legal claims and the much larger extent to which it does not. After a brief discussion of standards of proof in appellate review, chapter 2 explores some contexts in which the law self-consciously applies at least some of the framework for proof of facts to the initial proof of law. The most illuminating context is the proof of foreign law, which until roughly the mid-1960s generally followed the strict procedures for proof of facts. Whether or not this was a wise approach to adjudicating questions of foreign law (and the conventional wisdom is that not has much the better of that argument), the experience shows that it is at least possible not merely to think of proving law in exactly the same way that one thinks of proving facts but actually to do it. The point of such a discussion, I cannot emphasize too often, is not to argue that one should prove law in precisely the same way that one proves facts, or that the procedures for proof of foreign law are a model for proof of domestic law, but only that one needs to think about proving law using the same conceptual structure that one uses for thinking about proving facts.

Other contexts in which proof of law plays a prominent role include clear-statement rules, in which courts require certain parties to meet various thresholds of proof, and the law of official immunity, in which government officials can be held liable only for violating clearly established law. In these instances, at least some of the conceptual features of proof of facts explicitly bleed into the proof of law. Again, the point is not to argue for or against any particular application of these doctrines—or even to argue whether or not those doctrines should exist at all—but simply to illustrate how thinking about law as an object of proof can function in certain contexts.

Chapter 3 explores, in some concrete settings, how applying principles of proof to legal questions illuminates debates in interpretative theory. I will focus on constitutional and statutory interpretation, because it is a field in which I have written, but there is nothing distinctive about that particular type of interpretation. Devotees of other subjects can surely find analogues to my examples in their own fields. By recognizing that any claim about constitutional or statutory meaning (or any other kind of meaning) involves claims that implicate the formal structure of proof, this analysis will clarify what various debates about meaning really involve. I cannot emphasize too strongly or too often that the point is not to support, or even advance, any particular theory of constitutional or statutory interpretation but simply to provide a road map for clearer discussion about issues concerning interpretation and proof. If one person is, perhaps without realizing it, talking about principles of admissibility and the other is, perhaps without realizing it, talking about standards of proof, they are likely to talk past each other. Moreover, within the realm of admissibility, the law of evidence in connection with proof of facts often sacrifices the search for truth in favor of other values. There is nothing