The Mental Tyranny of Legal Concepts:

One of the comments to my Rep. Alcee Hastings post reads:

What do you suggest instead, hold a new (show) trial just for this purpose? It is a dilemma, but it seems the only solutions are to treat him as if he were guilty or treat him as if he were innocent. I would prefer the latter.

This, it seems to me, is a good example of how people sometimes give legal definitions and judgments more influence than they deserve. When we're deciding whether to put someone in prison for a crime, the main options under U.S. law is to find him guilty or find him not guilty (which is to say treat him for legal purposes as if he were innocent). There are some departures even from that -- for instance, he could be found not guilty by reason of insanity and then locked up -- but that's the general rule where the criminal judgment is concerned.

But we aren't talking here about whether Rep. Hastings should be thrown in jail for his crime; of course, he can't be, because he was acquitted. We're talking about whether he should be given the chairmanship of the House Intelligence Committee. Nothing says that this decision must be driven by the outcome of the criminal trial, or for that matter by the outcome of the impeachment trial, which found him guilty and removed him from the federal judgeship.

Say you were considering hiring a babysitter, and you learned that she had been tried for and acquitted of child molestation, or for that matter of theft from an employer's home. Would you say "the only solutions are to treat her as if she were guilty or treat her as if she were innocent," and "prefer the latter"? I doubt it; I suspect you might want to either categorically refuse to hire her (which might be a shame if it turns out she really was innocent, but you don't want to run the risk), or at least investigate the matter further.

If, for instance, she had been found liable in a civil trial, under a preponderance of the evidence standard (which is my sense of what tends to be used in impeachment trials), you might find that this is ample justification for not hiring her. The rules that we use in daily life for deciding whom to trust need not perfectly or even closely track the rules that the criminal law uses for deciding whom to imprison. (Some jurisdictions do bar some forms of employment discrimination based on arrest record, or in some cases -- outrageously, in my view -- based on conviction record, but assume there is no such rule applicable there, just as there isn't one applicable to the House chairmanship decision.)

We can all think of lots of other examples. In most areas of life, we don't make our decisions about people based on whether there's proof beyond a reasonable doubt that they're guilty of something; nor we should we. Such a standard of proof is animated by the special concerns posed by the government's punishing someone for a crime, concerns based on the extremely harsh consequences of such punishment to the defendant, and on the potential for government abuse if the standard were lower. Those concerns don't carry over into other parts of life, including into the decisions about whom to appoint to high and responsible government office.

Let me close with a related story. Several years ago, on a law professor discussion list, someone complained about people (not just professors writing law review articles, but laypeople) calling O.J. a murderer; he had been acquitted of murder, the professor said, so he wasn't a murderer. So I responded that, because he had been found guilty in the civil trial, we should instead call him an "intentional tortfeasor." I meant this as a joke, but, as I recall, some people thought I was serious, and approved of my proposal seriously.

But that can't be right. We shouldn't demand that laypeople adopt either legalese words, or use ordinary English words only in their technical legal meaning. To a lawyer, at least in many contexts, "murderer" may mean "someone who has been convicted in a criminal trial of murder." To a layperson, "murderer" may mean "someone who is in fact guilty of murder."

Those who call O.J. a murderer are saying that they think he's a murderer. The fact that the legal system found this only by a preponderance of the evidence and not beyond a reasonable doubt doesn't make such a statement wrong -- just as one can call someone a murderer even if he has never been tried (for instance, because he died before a trial could take place), and no legal finding of murder has been made. That the legal system adopts a "prove it to a jury beyond a reasonable doubt" standard in some context doesn't mean that we need to adopt the same standard in some other context, whether that context is casual conversation or judgment about who should get a House Committee chairmanship.