Burden Can Be a Beast

An Open Letter to the United States Senate Considering Kavanaugh


Dear Senators,

I write with a very specific recommendation to assist you as you weigh the information available to you and prepare for a vote on the nomination of Judge Kavanaugh to the United States Supreme Court. This confirmation process has been frustrating for many reasons, but I’ve been struck, as I was when I was a college student during the Anita Hill hearings in 1991, by the circular nature of the discourse. While trial-like, these hearings are not a trial, there are no evidentiary rules, you can consider testimony under oath, as well as all information publicly known. Importantly, there is no burden of proof, nor even a clear understanding of who would bear one.

As a trial consultant working primarily on civil cases for my 23 year career, I’ve watched thousands of mock jurors grapple with various burdens of proof. In the civil arena, because the stakes don’t involve the defendant’s liberty, the burden of proving a fact is much lower than “beyond a reasonable doubt”. Some questions must be proven only by, “a preponderance of the evidence”, others proven by “clear and convincing evidence”. Jurors always struggle, and rightly so; their decisions are made based on the credibility they choose to assign witness testimony and documentary evidence.

Most jurors in civil cases are instructed on some basic principles; which party bears the burden of proof, and which burden to apply to the decisions they must make. Without this framework, any finder of fact could easily become confused, which is where many of you may find yourselves.

I would like to offer a framework for your consideration. Your vote on the confirmation of Judge Kavanaugh is, in effect, your verdict. However, making a full determination as to the truth of any particular facts isn’t necessary. Your vote should be only on whether he should, or should not, be elevated to a seat on the Supreme Court. Judge Kavanaugh’s liberty is not at stake, these proceedings are not to find him liable for any wrongdoing — at worst, he stays where he is; a judge on the D.C. Circuit Court. As is the case for some civil issues, because he is seeking an elevated position, I would argue that the burden shifts to him.

Then the question becomes what burden to apply. Remember, we are talking about the Highest Court in the Land. I’ve been to the Court and heard oral arguments and I was struck by the thought that every American should observe an oral argument to better understand the heady nature of our Constitution and the importance of the rule of law. The Founders knew what they were doing when the listed “Justice” first:

“We the People of the United States, in Order to form a more perfect Union, establish Justice…

This is not a criminal proceeding, but just as a life sentence requires the prosecution to prove guilt beyond a reasonable doubt, I would argue that to grant Kavanaugh the privilege of a lifetime appointment to our nation’s highest court, you should be satisfied of Judge Kavanaugh’s innocence beyond a reasonable doubt. The notion that his words alone, in the face of mounting questions, would meet this burden is, frankly, offensive. After all, this is not about what Judge Kavanaugh deserves, but about what the country deserves.

In my view, when you are grappling with the information that you have, (and the remaining questions you have), I think that is the test. I think you must ask yourself; am I satisfied beyond a reasonable doubt of his innocence regarding the allegations against him? If not, I believe your vote should be no.


Tara Trask