Deflategate – Legal Terms Defined
By Randall Hinsch
During my commute to and from the office I usually listen to sports talk radio or Howard Stern. It depends on what is going on in the world. Lately, I’ve been listening to more sports radio. Deflategate has been the hot topic. I have my opinions as a sports fan listening, but also as a lawyer. I have heard much derision and ridicule over the Wells report and its conclusions, or the language used in its conclusions. The sports pundits find the term “more probably true than not” laughable as the level of proof needed for an adverse finding. It is too vague they say, no one knows what it means, or it can mean different things to different people.
But “more probably true than not” is the legal standard applied in every civil courtroom in this nation. It is defined by standard jury instruction given to every citizen on a jury panel in a civil case. The Arizona Standard Jury Instructions defines “more probably true than not” as meaning, “…that the evidence that favors that party outweighs the opposing evidence.” That’s right, it only has to be by a little bit. 50.1 % to 49.9% is more probably true than not. Another example trial lawyers use in explaining this burden of proof to a jury is to think of an evenly balance scale. If just the weight of a feather causes the scales to slight tip to one side, that establishes the burden of being more probable than not. Civil cases are about money and pretty much only about money. Civil cases do not involve the loss or liberty or life. Those are criminal cases.
Criminal cases have the higher, more powerful burden of proof we have all heard about or seen in movies or on TV: beyond a reasonable doubt. And, that makes sense that it should be a higher burden. You are taking away a person’s liberty, locking them up, perhaps for the rest of their lives. Or, you might be putting them to death. You want to be a lot more sure. How much more sure? The Arizona Standard Jury Instruction definition is:
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.
You have to believe that in writing up the Collective Bargaining Agreement (CBA) that exists between the players and owners in the NFL that it was hammered out by a small army of lawyers representing both the players and owners. That term being ridiculed, “more probably true than not”, was agreed upon by both sides with both sides knowing full well what it meant. It is the right standard. This is really all about money. The Patriots got fined $1 million dollars and lose a couple draft picks which could cause them to lose some games and perhaps more money in sales and merchandising. Tom Brady, currently anyway, has a four game suspensions without pay. Money. No one is being thrown in jail or put to death.
Two more terms that I keep hearing that drive me nuts while I am listening to the radio: “direct evidence” and “circumstantial evidence.” Those against any fines against Brady or the Patriots argue, “This is outrageous, they have no direct evidence, all they have is circumstantial evidence and they can’t do anything just based on circumstantial evidence!” Wrong. Let’s look at the legal definitions again.
The Arizona Criminal Jury Instruction states:
Evidence may be direct or circumstantial. Direct evidence is the testimony of a witness who saw, heard or otherwise sensed an event. Circumstantial evidence is the proof of a fact of facts from which you may find another fact. The law makes no distinction between direct or circumstantial evidence.
Let’s apply that to a hypothetical situation. A loved one – a sister, daughter, wife – is viciously attacked and raped by a masked man. She cannot identify her attacker. There is no eye witness. The rapist does not come forward and confess. You have no direct evidence. But the attacker left finger prints and DNA behind – circumstantial evidence – that establish scientifically beyond a reasonable doubt that he was the attacker. Do you say, “But there is no direct evidence, only circumstantial, please let the attacker go”? No, you do not. Many times the circumstantial evidence is more reliable than eye witness testimony.
It is not a perfect system, but it is our system and it is the best one in the world.
Partner Frank Verderame is a seasoned trial attorney, who has dedicated his life to helping victims of serious injuries. He is a Board Certified Specialist in Personal Injury and Wrongful Death Litigation, and has been an active part of legal communities and organizations since he started his practice, back in 1983.
Read more about Frank Verderame