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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.

Alan P (mail):
To paraphrase Big Julie in Guys and Dolls

I've gone straight, look at my record

Thirty three arrests, no convictions
10.25.2006 3:14pm
Houston Lawyer:
There is also the problem of calling someone an "alleged" murderer after he has been convicted.
10.25.2006 3:17pm
Daniel Chapman (mail):
Very good point, HL.
10.25.2006 3:18pm
American Psikhushka (mail) (www):
If someone had not been charged criminally or found liable civilly calling them a "murderer" would seem to give them a very strong libel/defamation/etc. case, wouldn't it?
10.25.2006 3:20pm
neurodoc:
Was the late Ken Lay a convicted felon? I consider him such, though he died while his appeal was still pending, with the ultimate legal effect the same as if he had never been found guilty at trial.
10.25.2006 3:22pm
neurodoc:
If someone had not been charged criminally or found liable civilly calling them a "murderer" would seem to give them a very strong libel/defamation/etc. case, wouldn't it?

Maybe in the UK, where it is the defendant in a libel action who must proof the defamatory statement was in fact true.
10.25.2006 3:26pm
lucia (mail) (www):
Too true. And the observation goes well beyond criminal acts, but to simple daily life. You can suspect someone a liar, stingy, careless, feckless ora any other negative thing, even if that has not been been proven beyond a reasonable doubt in court. You can even act on your opinion.

You might need to be careful about expressing the opinion -- but you may certainly act on your suspicious when voting, hiring, handing out prizes, inviting people over for dinner, or even handing out a House Committe Chairmanships.

Of course, one hopes you base your opinion on reliable information. But I think it's fair to say there is some evidence to suggest other Congressional Reps -- most of whom, like Rep. Hastings are also not convicted felons, might better deserve the chairmanship.
10.25.2006 3:26pm
Mike BUSL07 (mail) (www):

If someone had not been charged criminally or found liable civilly calling them a "murderer" would seem to give them a very strong libel/defamation/etc. case, wouldn't it?

Without researching the law, I would tend to agree with that to the extent the truth defense is concerned. Assuming the speaker would try to assert truth as an affirmative defense, would collateral estoppel from the civil trial, (where the burden of proof is the same), apply, preventing the speaker from presenting evidence that the guy is a "murderer."

BUT, and I really don't know the law here too well, doesn't libel require malice? So if the speaker actually believes that the alleged victim of his libel is a murderer, then isn't he out of the hot water?
10.25.2006 3:30pm
Opus:
To a layperson, "murderer" may mean "someone who is in fact guilty of murder."

'Guilty,' of course, in the non-legal (moral?) sense.
10.25.2006 3:33pm
Eugene Volokh (www):
American Psikhushka: Calling someone a murderer if he isn't in fact guilty of killing someone might well be defamatory, depending on the context (e.g., whether or not "murderer" in context is clearly just hyperbole, or perhaps a statement of opinion based on stated and accurate facts).

But the question at the defamation trial will be whether he in fact killed someone unlawfully (plus whether the speaker had a culpable mental state related to this fact), and the defendant will have to persuade the jury that he didn't do the killing, likely by a preponderance of the evidence. It generally will not be whether he's been in the past convicted of murder, or found civilly liable for murder. "I was never found guilty of murder, so it doesn't matter for defamation law purposes whether I am in fact unlawfully killed someone" is not a winning argument for a defamation plaintiff.
10.25.2006 3:33pm
TC (mail):
I've always been bothered when people throw out the "innocent until proven guilty" maxim. Yes, that maxim applies in our criminal justice system, but nothing requires me (or any other individuals) to treat or believe someone is innocent only because we haven't gotten around to a trial yet.

And nothing compels me to treat someone as "innocent" just because a jury found that person "not guilty."

So in summary, I agree wholeheartedly with EV's post!
10.25.2006 3:34pm
AnandaG:
While I agree that a sane system would probably filter individuals like Hastings from assuming important positions having to do with secret information, it seems to me that this is a straightforward result of the seniority system and of the high re-election rates in Congress. Hastings unquestionably has the single most important qualification for the chairmanship -- that he was re-elected to the U.S. Congress by the people of his district, who apparently felt that all his ethical issues were outweighed by his other qualities (which may have included his seniority!).
10.25.2006 3:47pm
dweeb:
We shouldn't demand that laypeople adopt either legalese words, or use ordinary English words only in their technical legal meaning.

We shouldn't expect clear and unambiguous use of language? Well, then, lets eliminate vocabulary, grammar, and usage from the public school curriculum, since it's so unimportant.
I think it's a great idea for laypeople to understand and properly use legal terms, and suggest that for a lawyer to desire otherwise may stem, at least partially, from a desire not to diminish his/her unique-ness among the populace.

but nothing requires me (or any other individuals) to treat or believe someone is innocent only because we haven't gotten around to a trial yet.

Well, at least not until that treatment involves putting on a sheet and tossing a rope over a tree limb.
10.25.2006 3:53pm
Mike BUSL07 (mail) (www):

Well, at least not until that treatment involves putting on a sheet and tossing a rope over a tree limb.

That's quite a leap... I think the example EV used involved the decision to not hire a particular babysitter - not to hang her from a tree. Your hyperbole is ludicrous.
10.25.2006 3:57pm
Seamus (mail):

If someone had not been charged criminally or found liable civilly calling them a "murderer" would seem to give them a very strong libel/defamation/etc. case, wouldn't it?



If the person was a public figure (like O.J. Simpson), then we'd be free to call him a murderer all we liked, so long as we didn't have actual knowledge that he didn't do it, and weren't accusing him with reckless disregard of whether he actually did it or not. If, on the other hand, he wasn't already a public figure (as would likely be the case if he hadn't been fingered by the cops as a suspect or a "person of interest" and wasn't famous for other reasons), then anyone calling him a "murderer" had better be prepared to demonstrate the truth of the accusation.
10.25.2006 3:58pm
Bored Lawyer:

We shouldn't expect clear and unambiguous use of language? Well, then, lets eliminate vocabulary, grammar, and usage from the public school curriculum, since it's so unimportant.
I think it's a great idea for laypeople to understand and properly use legal terms, and suggest that for a lawyer to desire otherwise may stem, at least partially, from a desire not to diminish his/her unique-ness among the populace.


Please. There is no ambiguity about the fact that the same word or phrase has a different meaning in different contexts.

A "murderer" in a court of law means someone convicted of that crime through a criminal procedure.

In ordinary parlance, it means "someone who intenationally and wrongfully killed another." (The latter two adverbs are meant to exclude accidents and justified killings, like self-defense.)

Hence the phrase "he got away with murder," which in a Court has no meaning.
10.25.2006 4:23pm
Doug B. (mail) (www):
It is worth noting that we do not even use the BRD standard at sentencing when deciding
how long

to imprison someone. Under current federal sentencing law, nearly all sentence enhancements need only be proved by a preponderance, even if years and years of imprisonment are tacked on.
10.25.2006 4:30pm
David Chesler (mail) (www):
"The standards for being in Congress ought to be stricter than the standards for staying out of jail."
(I can't remember who said that.)
10.25.2006 4:36pm
AF:
To respond to HoustonLawyer way up at the top, if an acquitted murderer like OJ can still be called a "murderer" by people who think he's guilty, a convicted murderer can still be called an "alleged murderer" by people who think he's innocent. Right? You can't have it both ways.
10.25.2006 4:41pm
John T (mail):
"Was the late Ken Lay a convicted felon?"

Well, I wouldn't necessarily call him a "convicted" felon, but I would be pretty exasperated at someone who claimed that he wasn't a felon due to being found innocent on account of death.
10.25.2006 4:52pm
Stephen Carter (mail):
I seem to remember from my youth how the antiwar demonstrators (myself perhaps included) would refer to the President of the United States as a "murderer" and "war criminal," although he had not been tried or convicted of either offense. And although my attention to current events is at best intermittent (I am a student of the past, I fear), it is my impression that my children's generation also believes this an appropriate form of address for the Chief Executive.

This is not a mere aside. We constantly make decisions in our own minds about the culpability of others in events that have never been the subject of courtroom trial. We order our worldviews according to those judgments. In politics they burst into view all the time, as, for example, when we announce our support for or opposition to a particular judicial nominee because we believe that we know (or know sufficiently) how that individual will vote.

I am not suggesting that Representative Hastings should be denied the chairmanship of the committee, should his party regain control of the House. I believe people tend to do their best and to grow into their jobs, and politicians, despite the calumny heaped on them, are not exceptions. I suspect that Hastings would do a far better job than his critics suppose.

I do think that it is possible to oppose (or support!) Hastings or any other candidate, from either side of the aisle, without requiring that our views of the facts surrounding the individual be tested by the standard of reasonable doubt.
10.25.2006 4:53pm
nervous dad:
So, this guy was convicted of 42 counts of child molesting, but got it thrown out on appeal for a Miranda problem. So I must fully blind myself to that fact when he applies for the nanny job? Uh, right. Sure.
10.25.2006 5:04pm
logicnazi (mail) (www):
Well my first reaction to this post was "well duh," combined with continued amazement that people make such silly logical errors as confusing legal conviction with sound reason for believing the act was committed.

The most obvious cases where someone's status as a murderer or as corrupt comes apart from whether they are deemed guilty or not guilty is when the courts were procedurally barred from using significant evidence. For instance if the suppression rule was applied to compelling evidence or double jeopardy prevents a second trial despite the discovery of new evidence. Also there are the examples you cited of civil judgements despite the lack of a criminal conviction.

However, apart from these clear cut situations I'm inclined to think the sentiment embodied in the quote is a good thing. While in theory legal status and actual guilt or innocence do come apart in most cases the average man on the street doesn't have enough information about the case to determine guilt or innocence himself. Though far from perfect the outcome of the criminal trial is the best guide the non-expert has to the guilt or innocence of the individual. The problem is that if people don't have the attitude that they should treat a person as innocent unless the courts (either civilly or criminally) have deemed them so it is far too easy to ruin the reputation of an innocent person, especially with scandalous charges.

I mean consider a young woman who runs a daycare. I suspect most people would be very reluctant to leave their children in the hands of someone they thought might be a molestor. Yet this means that if some father wants to blackmail the woman running the buisness into sex he only needs to threaten to accuse her of molesting his child and since these are often he said she said affairs she will likely actually be indicted.

This need not even be the result of malicious action. Since people don't have time to analyze the evidence individually without some sort of contervailing force it is all to easy for an innocent individual's life to be ruined by a false charge.

The countervailing force in our society is people's (irrational?) tendency to adopt the 'treat them as not guilty unless convicted' standard in their own thoughts. Sure there are exceptions but in general having a reasonable doubt standard in our treatment of people as well as in their actual convictions is often a good thing.

In short I agree with you about how one should evaluate actual truth of accusations but I think the inclination to treat who are deemed not guilty as if they really weren't guilty is a positive social force.
10.25.2006 5:11pm
David M. Nieporent (www):
BUT, and I really don't know the law here too well, doesn't libel require malice? So if the speaker actually believes that the alleged victim of his libel is a murderer, then isn't he out of the hot water?
No. "Malice" in defamation law is a term of art. It means, to oversimplify, that you knew the statement was false or that you acted with reckless disregard for the truth. The fact that you "actually believe" it is insufficient.

And for non-public figures (though obviously this doesn't apply to OJ or Hastings), malice is not a constitutionally required element anyway, although a state may choose to require it. (Strict liability, however, is not constitutional; there must at least be negligence on the part of the speaker.)


Disclaimer: This ain't legal advice, yada yada yada.
10.25.2006 5:11pm
Bob Power (mail):
Eugene's point is valid in much the same way that a good parent is probably not going to hire as a house sitter a person who has been acquitted of a theft crime unless the nature of the acquittal proved innocence. The point could be made even more strongly against the Bush administration for hiring Admiral Poindexter. His conviction was overturned because some of the proof of his guilt of lying to Congress was potentially a result of testimony he was compelled to provide under immunity. Congress should not have tolerated having to deal with him.
10.25.2006 6:16pm
markm (mail):
"Hastings unquestionably has the single most important qualification for the chairmanship -- that he was re-elected to the U.S. Congress by the people of his district." No, that qualifies him to sit in Congress. The rest of the country did not vote for him, and it's reasonable to expect somewhat higher standards for a position that affects the rest of us than, "his constituents don't care that he's a crook."
10.25.2006 6:18pm
Bruce Hayden (mail) (www):
The other thing about someone being continually reelected to Congress is that most Congressional districts are now almost completely safe for the incumbant. I have no doubt that Hasting's seat is in that category, given his race and that the safest seats in the country are probably minority seats, as there has apparently been a trend for Republicans to get together with minority groups to make safe minority districts at the cost of overall Democratic districts.

So, a better way of saying it might be that his district is so safe that even an impeached and convicted (by the Senate) federal judge could consistently win there.
10.25.2006 6:31pm
American Psikhushka (mail) (www):
neurodoc-

Maybe in the UK, where it is the defendant in a libel action who must proof the defamatory statement was in fact true.

I believe in the US the truth is a defense as well, so if they wanted to use that defense they would have to prove it.


lucia-

You can suspect someone a liar, stingy, careless, feckless ora any other negative thing, even if that has not been been proven beyond a reasonable doubt in court. You can even act on your opinion.

Well, you can't act criminally on your opinion. And you can't act in a defamatory manner and if you do you would then have to prove your opinion was true or face the consequences.


Prof. Volokh-

But the question at the defamation trial will be whether he in fact killed someone unlawfully (plus whether the speaker had a culpable mental state related to this fact), and the defendant will have to persuade the jury that he didn't do the killing, likely by a preponderance of the evidence. It generally will not be whether he's been in the past convicted of murder, or found civilly liable for murder. "I was never found guilty of murder, so it doesn't matter for defamation law purposes whether I am in fact unlawfully killed someone" is not a winning argument for a defamation plaintiff.

Uhh, don't you mean the defendant will have to prove that the plaintiff he defamed did kill someone?


TC-

I've always been bothered when people throw out the "innocent until proven guilty" maxim. Yes, that maxim applies in our criminal justice system, but nothing requires me (or any other individuals) to treat or believe someone is innocent only because we haven't gotten around to a trial yet.

Correct, but if you act in a tortious way towards them and they are innocent you will face the consequences.
10.25.2006 7:13pm
Christopher Cooke (mail):
To Mike BUSL07: regarding the collateral estoppel issue you raise, an accused murder's aquittal in a criminal trial would not act as collateral estoppel in a defamation action initiated by the accused because (1) the defendant was not a party to the criminal proceeding and (2) the burdens of proof are different. Likewise, a verdict for the accused in a civil wrongful death action would not operate as collateral estoppel in a defamation action unless the defendant in the second action was a plaintiff in the first action (or someone whose interests were represented in the first action). Why? Everyone gets his or her day in court.

I agree with Professor Carter's and Professor Volokh's posts about Hastings. We are all entitled to use our own standards to judge whether he should or should not be Chair of the House Intelligence Committee. So, his acquittal doesn't answer the question, but neither does his impeachment. If I were Pelosi, I would look at the evidence that came to light during both proceedings and how he has acted as a member of Congress during the past decade, and decide on that basis.

For example, many have suggested, with some support from the historical evidence, that William Rehnquist lied, and possibly engaged in perjury, during his Senate confirmation hearing held on his appointment as an Associate Justice (see John Dean, and Vincent Bugliosi, for example). But, the fact that Rehnquist was never charged with perjury might not have been as relevant to a Senator who had to decide his qualifications to serve as Chief Justice when Reagan nominated Rehnquist for that position as, for example, Rehnquist's performance as an associate justice. Once, when I mentioned the issue of Rehnquist's possible perjury to another attorney (a political liberal, by the way), he expressed the view that Rehnquist had grown as a person, and he said he was prepared not to hold Rehnquist's past, possibly untruthful, testimony against him. Was the attorney wrong to do so, assuming he agreed that Rehnquist had committed perjury many years ago?
10.25.2006 7:30pm
Eric Anondson (mail):
Anyone think that because Bush and Rove and the neocon joooooos haven't been convicted of "murder" it will be enough to get unbalanced BDSers to stop calling them murderers and give them the benefit of the doubt?
10.25.2006 7:32pm
elChato (mail):
I guess the guys acquitted of killing Emmett Till, and thousands more like them, should have been treated as "innocent" and no honor should have been withheld from them, right?

I mean, after all they were acquitted. Therefore the only solution is to treat them as if they are innocent.
10.25.2006 8:14pm
American Psikhushka (mail) (www):
elChato-

The Till case was an atrocity, and doesn't make the best example.

How about this as a hypothetical: Someone makes a false claim against you, that eventually is disproven. Would it be a good thing if everyone still treated you as if the claim were true? What if a group was still going around saying it was true - defaming you. Should you be able to sue them?
10.25.2006 8:46pm
BGates (mail) (www):
Psikushka-
The Till case was an atrocity, therefore it does make the best example. The point is that the legal system can sometimes produce results that offend reason, so treating alleged criminals based solely on the disposition of their court cases is bound to sometimes be unreasonable.
10.25.2006 9:21pm
Bored Lawyer:

I believe in the US the truth is a defense as well, so if they wanted to use that defense they would have to prove it.


AFAIK, in every US jurisdiction, falsity is one of the elements of the plaintiff's case, as to which the pltf. carries the burden of proof. Unlike the UK where truth is an affirmative defense, burden on the dfdt.
10.25.2006 9:51pm
lucia (mail) (www):
American Psikhushka responded:
Well, you can't act criminally on your opinion. And you can't act in a defamatory manner and if you do you would then have to prove your opinion was true or face the consequences.

Agreed.

But then, I'm under the impression you can't act criminally on any opinion not even those confirmed by a jury of 12. Even if OJ had been convicted I wouldn't be able to kill him, batter him, or anything else illegal. So, the fact that suspicions is unproven doesn't affect my right to act on my suspicion. I can select between any range of legal actions based on my suspicions.

When I was single, I could, for example, refuse to marry or date guys who I considered is unkind, stingy, racist, sleazy, awkward, or just butt ugly! (And, btw, I did!)

As to defamation, I was referring to that when I said, "You might need to be careful about expressing the opinion..."
So yes -- if you are willing to risk consequences of a defamation suit, you can say whatever you wish. Otherwise, you might want to avoid expressing an opinion you either can't prove or which you might find burdensome to prove. (Im not a lawyer, but my impression is getting sued is probably time consuming, costly and generally not fun.)

That said, I'm not quite sure what damages party A might gain by suing party B for suggesting they were feckless!
10.25.2006 11:30pm
American Psikhushka (mail) (www):
BGates-

The Till case was an atrocity, therefore it does make the best example. The point is that the legal system can sometimes produce results that offend reason, so treating alleged criminals based solely on the disposition of their court cases is bound to sometimes be unreasonable.

So what do you propose, BGates, the BGates Justice League where you get to act as judge, jury, and executioner? You might as well throw on the white sheet and light the torches yourself. And what happens when you guess wrong and harm an innocent person? You better be prepared to answer for it, because eventually you will.

The Till case involved an ethnosupremicist organized crime group, which had the support of a substantial portion of the local government and populace. What would you have done if you had a time machine and were able to go back? The whole area was corrupt. They would have lynched you too. See the movie "Missisippi Burning" - that's exactly what the KKK did to some students that went south to help get out the black vote. Sometimes whole "communities" are corrupt and approve of, or at least don't stop, atrocities. That's another atrocity, but eventually you do what is done - make efforts to stop the corruption and stop the criminal groups.
10.26.2006 1:45am
American Psikhushka (mail) (www):
lucia-

When I was single, I could, for example, refuse to marry or date guys who I considered is unkind, stingy, racist, sleazy, awkward, or just butt ugly! (And, btw, I did!)

Of course, not being able to reject someone's advances would be slavery. I've rejected women for being ugly, overweight, dishonest, unintelligent, cowardly, insecure, backstabbing, sloppy, skanky, ignorant, materialistic, economically ignorant, controlling, socialist, statist, intolerant, ethnosupremicist, annoying, unhygienic, etc, etc, etc.....
10.26.2006 2:03am
David M. Nieporent (www):
Bored Lawyer: public/private figure distinction. For public figures, the burden of proof must be on the plaintiff; for non-public figures, states are free to use the UK rule.
10.26.2006 2:28am
Public_Defender (mail):
I once one a new trial for a client convicted of murder. The prosecution had withheld Brady evidence that pointed to someone other than my client. The headline in the local paper was something to the effect of "Murderer gets new trial."

Generally, I agree that it's OK for lay people to say use a crime label for someone who is not convicted (although they may have to put the accusation to the test in a libel/slander action), but the headline about my client really ticked me off. After all, a court had just thrown out the conviction after determining that there was substantial evidence that some other dude did it (the SODDI defense). And this was a newspaper, not a casual speaker.
10.26.2006 6:04am
Public_Defender (mail):
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. . . .

Recently, another criminal defense lawyer explained a problem one of his clients was having. The client was acquitted of child molestation, but a woman in his kid's school was trying to keep him from volunteering to help the kid's sporting team. The woman was telling people that the guy was a child molester.

I don't know what he ultimately decided to do, but the lawyer was seriously considering suing the woman for slander. If the case is filed, he could introduce evidence that he was not guilty, and she could try to prove he was guilty.

A slander trial would be high risk for both sides. He could end up with a verdict saying he did it, and she could end up with a large damages award (is there anything worse to falsely accuse someone of than child molestation?).

The main point is, if the acquitted person you want to label a "murderer" or a "child molester" or whatever is not a public figure, be prepared to back up your accusation in court. And be prepared to pay damages if you are wrong.

That puts school officials in a bind. Maybe they can keep the dad from volunteering, but if they explain their decision to anyone, they could face a slander suit if they say the dad did what he was acquitted of.
10.26.2006 7:34am
Mike BUSL07 (mail) (www):
Christopher Cooke: Thanks!
10.26.2006 8:51am
Tom Jefferson:
EV is correct, the poster went to far and fell into a problem of thinking his lack of conviction (or impeachment) does not matter. But what EV proposed was that a house chairmanship not go to a ranking member, qualified to be on the committee for a number of years, but not qualified to chair the same. It seems to me his rationale applies to Hastings being on the committee in the first instance and in the House of Reps in the second instance. The second issue is out of our control as the fine people of Florida elected him and re-elected him. But the first issue is more troubling and that calls into question what House membership entails. I'm not sure that his impeachment answers the issue of whether he should be allowed to be chair.

Presumably the fine folks of Florida were aware of the impeachment before electing him. Denying him the benefits of his seat or certain committees (or any committee for that matter) does not seem right to me. Perhaps that is what the poster meant; he was not convicted and he was punished for his misdeeds. He is now in Congress, duly elected and senior to many, and more substance needs to be presented to say he is unworthy of the chair he is seeking or that I should be troubled because he has it. If the fine folks of Florida suffered because of his past deeds, they would be wise to elect a new Congressman.

no time for spell or grammar checking, please forgive my typical spelling and grammar errors.
10.26.2006 2:03pm
Eugene Volokh (www):
David Nieporent, American Psikhushka: The burden of proving falsehood is on the plaintiff in all public concern cases, whether the plaintiff is a public figure or not. See this post for the cite.
10.26.2006 3:26pm
lucia (mail) (www):
American Psikhushka,
Your list for rejecting prospective dates was longer than mine. You must be really, really picky! {{grin}}
10.26.2006 3:50pm
neurodoc:
American Psikhushka: Well, you can't act criminally on your opinion. And you can't act in a defamatory manner and if you do you would then have to prove your opinion was true or face the consequences.

As has already been pointed out, you are not allowed to "act criminally on your opinion" or on any other basis. If the action were legally allowed, then it would not be criminal.

And in court, one only has to prove something true if they have the burden to do so, which defendants in libel or slander actions usually don't have. Furthermore, while something said (slander) or written (libel) may be highly derogratory, but if it is clearly "opinion" without any implication of facts, the one who did the defaming doesn't have much reason to worry about losing if a defamation action is brought. If I were heard to say that my neighbor is a obnoxious jerk and should be treated as such, I am not going to be found liable for slander, though I defame him. And those who shun my neighbor, if that constitutes "act(ing) in a defamatory manner," would be liable for anything either. If however I told a prospective employer they shouldn't hire my neighbor because beside being an obnoxious jerk, he was fundamentally untrustworthy, implying some unstated factual basis for that "opinion," then I might have to defend that sort of defamatory "opinion" in court.
10.26.2006 4:23pm
David M. Nieporent (www):
The burden of proving falsehood is on the plaintiff in all public concern cases, whether the plaintiff is a public figure or not.

Yeah, I knew that; I was really just being sloppy and using "public figure" as shorthand for "public concern."
10.26.2006 5:33pm
Eugene Volokh (www):
David Nieporent: Makes sense to me -- an easy slip-up to make -- but I should just warn readers who aren't acquainted as we are with libel law that "public figure" and "public concern" are indeed quite different concepts. Though some statements about public figures tend to be more likely to be seen as of public concern than some similar statements about private figures, neither term is a sound shorthand for the other.
10.26.2006 5:53pm
JohnEMack (mail):
It cannot be seriously maintained that a cirminal acquittal should be beinding with respect to any consideration of the defendant's actions. That said, modern law tends to go too far in the other direction -- to ignore an acquittal and take civil and administrative actions against the defendant as if nothing happened in the cirminal trial. Most notably, license revocation in DUI cases is independent of the result of a criminal trial, even if the defendant proves at the criminal trial that he was in Europe when the DUI arrest took place. Child support and custody matters, employment terminations and bars, disciplinary actions, etc., are now so regularly independent of the result of the criminal action that not only is an acquittal irrelevant -- it can be an aggravating factor (the louse did not get his condign punishment in criminal court, so ....) Very few states retain the rule that an acquittal in a murder case is a bar to either a civil action or an administrative action based upon an unlawful killing. In some cases, it is wise and important to ignore the results of a criminal trial. But in other cases, the fact that a real jury of civizens rather than a bureaucrat or politician decides whether someone did an evil act or not should be conclusive.
10.27.2006 10:42am