Yesterday a New York jury found that Donald Trump had sexually abused E. Jean Carroll and that he had maliciously defamed her. I noticed something interesting in some of the descriptions of the verdict I heard or read. Here is the excellent Adam Klasfeld, who followed the story closely:
The jury, he writes, found that Trump likely abused Carroll. In a sense, that’s right, because Carroll only had to prove her case by a preponderance of the evidence, or in other words, only had to prove that it was more likely than not that what she claimed was true.
This one, from Benjamin Weiser of the New York Times, is worse:
Sides with? The jury just picked a side in a story that still, after the trial, has two sides, and we can’t presume to decide between them?
There is a lot to say about what the burden of proof actually means and how it actually works. There’s a lot to say also about the psychology of journalists and what they are doing when they are super-cautious when writing about Trump in a way maybe they wouldn’t be otherwise. But I don’t want to focus on what the jury thought it was doing. We can’t know about this particular jury, anyway. Nor do I want to focus on what the reporters thought they were doing. Instead, I want to ask how we should treat a verdict once it is rendered. Should we say that Trump abused Carroll, that the jury found that Trump abused Carroll, that the jury found that Trump likely abused Carroll, or that the jury sided with Trump over his accuser?
With caveats, I think we ought to say that Trump abused Carroll. Why? Because “facts are created.” Here is what I wrote about this point in the Chevron/Ecuador case, when Donziger was caught on tape telling his team that “facts don’t exist, facts are created.” My reading was sympathetic to Donziger’s point:
When we talk about “the facts,” sometimes we mean the facts as they truly are in the world. The earth spins on its axis. That’s a fact. There are oil byproducts in pits in the Amazon that pollute the groundwater. That’s a fact (a least it looked like it to me when I visited one of the pits). But in the sense that I think Donziger was likely speaking, sometimes we mean the facts that a judge or a jury finds to be true, and that are embodied in a court’s final judgment. So when he says “facts are created,” I think Donziger means that for legal purposes, the facts are what the judge or jury finds that they are, and that lawyers, if they do their job well, can make it more likely that judges or juries will find the facts in a way favorable for the lawyers’ clients. Saying “facts are created,” in this sense, is an exhortation to the team to do its job: “let’s make sure that we put all of the relevant facts before the court and that we argue persuasively for the inferences that we want drawn from the facts, so that the court will rule in our favor.”
But I went on to explain another way of looking at the phrase:
In the way Donziger used the phrase, the emphasis is on the word “created.” Facts don’t just exist, facts are created. But there’s another way to think about the phrase. Facts are created. The court finds the facts, not just one story among others. Of course there is no guarantee that the facts that a court creates are true in the sense that it’s true that the earth rotates on its axis. Perhaps we should write facts′ for the facts that the court finds to distinguish them from the other kind of facts. But the facts′ that the court finds have legal consequences in a way that the other kind do not. And facts differ from facts′ in another way: in the scientific age, empirical facts at least are always liable to revision and correction. But facts′ are conclusive and unchangeable, except as the law provides (for example, the law provides a right of appeal from findings of fact to another court; it provides a means for the court to reject manifestly wrong findings by a jury immediately after a trial; it provides an opportunity to seek to set aside a final judgment in limited circumstances).
The point is that the courts are our socially-approved method of dispute resolution. The judicial process is a kind of machine for finding the facts′ that we will take to be true. So when a court has found the facts′ (whether or not via a trial by jury), we should treat those facts′ as true. Maybe we should say that the facts′ are true′. They may not really be true, but they are socially true, and we should treat them as true, again with caveats. That’s not to say that courts are always right or that there should be no appeals or other challenges to fact-finding. But to treat a jury’s verdict, or a judge’s findings of fact, as just one story among all the other possible stories is to miss what makes a real court different from, say, the court of public opinion. A real court is invested with authority by the public to say which facts′ are true′.
About those caveats. I can think of a few. First, you have to have a basic agreement that the courts are good enough at determining the truth and that they are fair enough to be worthy of respect. Second, maybe you want to give some extra credence to the findings of a jury that you wouldn’t give to the findings of a judge, because the jury is the voice of the community. Or maybe it’s the other way around, because the judge, unlike the jury, has to give reasons for a decision. Third, you have to make sure there are good enough methods of error correction: motions for judgment notwithstanding the verdict, motions for new trial, motions to set aside judgments, appeals, and so forth. Fourth, you have to put limits on the rules of preclusion, so that someone who has a real interest in the case but who is not sufficiently aligned with any of the parties to be bound by the judgment can relitigate the facts if he wants to.
In short: even though we know courts are not infallible, there is a kind of social ontology in which a judge or jury’s decision about what happens is different from the decisions people who read the news make over a cup of coffee. Our news should reflect this.