by Barry Krusch
If that standard strikes you as ridiculously high, it was in fact way ahead of its time, because an even higher standard is being deployed today by surprisingly enough, corporate America.
This standard is used in a strategic movement designed to incorporate confidence level as a means of quality control. The name of the strategy (which achieved popularity in the 1990s, and greater popularity in the 21st century) is Six Sigma. For a CEO in Fortune 500 America today, a 95% reliability figure for corporate work product, taking a page out of the Bible, would result in ouster by the Board of Directors, according to this overview of Six Sigma from Wikipedia:
The term Six Sigma originated from terminology associated with manufacturing, specifically terms associated with statistical modeling of manufacturing processes. The maturity of a manufacturing process can be described by a sigma rating indicating its yield, or the percentage of defect-free products it creates. A six sigma process is one in which 99.9999966% of the products manufactured are statistically expected to be free of defects (3.4 defects per million). Motorola set a goal of “six sigma” for all of its manufacturing operations, and this goal became a byword for the management and engineering practices used to achieve it. 6
Six Sigma was originally rolled out by Motorola, but these days, numerous Fortune 500 companies utilize the management approach, including General Electric, Lockheed Martin, Xerox, Honeywell, and 3M, to name just a few. 7
So, if the American justice system were to deploy the same level of quality control in death penalty cases as Fortune 500 companies, we would expect a confidence level of 99.9999966% to be utilized as a benchmark! And that leads us to this provocative question:
Is it too much to expect a standard of 95% confidence in death penalty cases when corporate America gives us a far higher standard for the manufacture of toaster ovens?
From the Six Sigma perspective, the 95% number is extremely liberal for the prosecution, by no means “too high,” 8 a number easily achievable by the vast majority of sellers on Ebay.
The final proof that the 95% number is a standard that could certainly be met by the lone assassin theorists (the ones most likely to complain) comes none other from Vincent Bugliosi. In Reclaiming History, Bugliosi indicates quite emphatically that meeting the 95% confidence level would be a veritable cakewalk, since, according to Bugliosi, Oswald was guilty not just beyond a reasonable doubt (Reclaiming History, [hereinafter RH] 592; emphasis supplied):
Indeed, the evidence against Oswald proves his guilt not just beyond a reasonable doubt, but beyond all doubt, or, as they say in the movies, beyond a shadow of a doubt.
In fact, the standard that Bugliosi claims that he can meet is almost ridiculously high, beyond even Six Sigma levels (RH 592; emphasis supplied):
. . . it is not humanly possible for him to be innocent . . . Only in a fantasy world could Oswald be innocent and still have all this evidence against him. I think we can put it this way: If Oswald didn’t kill Kennedy, then Kennedy wasn’t killed on November 22, 1963.
So, if anyone is going to claim that the Fatico benchmark that we are going to be using in this book (95%) creates a standard of proof far too difficult for the prosecution to meet, it certainly isn’t going to be Vincent Bugliosi, the prosecutor who is arguably the one most familiar with the facts of the case. Nor would it be Stephen King, Mr. 98% or 99%. Consequently, while some might follow the lead of the Bible and corporate America and argue that the 95% number is too low (and rightfully so), no one can plausibly argue that the number is too high, and therefore we will settle on that number, because, contrary to what Mr. Bugliosi and Mr. King claim, the prosecution is going to need all the help it can get.
So, now we have a number to use to evaluate the strength of the evidence for and against claims, and because we do, we are able to translate numerically the impact categories of evidence will have on claims. Naturally, there is going to be room for disagreement on the precise numbers that are going to result from analysis, but luckily absolute precision is not required. If one person argues that he is 50% confident based on the evidence that a person committed the crime, and another person argues that he is 75% confident based on the evidence that a person committed the crime, there is some very profound disagreement as to the absolute numbers based on the evidence, but it really doesn’t matter, we can see that both are well short of the 95% reasonable doubt standard! And, in fact, essentially the same reasoning applies even if there are different reasonable doubt standards. As the U.S District Court noted in Fatico (458 F. Supp 388, 411; emphasis supplied):
The high probability required in criminal cases, however, does not mean that most guilty people who are tried are acquitted. In almost all cases the guilt is so clear or the doubt so great that precise quantification is of no moment. In some few instances which this court would roughly estimate on the basis of experience as no more than one in ten cases it may make a difference whether the trier’s perception of the standard is 80, 90, 95, or 99%.
As you are going to see later on in this book, the reasoning of this paragraph is particularly apt, and ought to quell any remaining qualms.
So, now that we have a standard by which to evaluate the quality of our evidence, let’s see how the quality of our evidence can impact the confidence level of our claims.
Chapter 4
Reasonable Doubt:
How Evidence Affects Confidence Level
With our confidence level requirement of 95% firmly established, we are now in a position to determine how the nature of the evidence gathered will affect our ability to achieve that confidence level.
As alluded to in the previous chapter, there are four criteria/decision points the body of evidence must traverse to establish the requisite confidence level. For each element to cross the threshold of reasonable doubt (i.e. to achieve the confidence level of 95%), the body of evidence to be evaluated by a juror must be:
Comprehensive
Credible
Sufficient
Consistent
These terms are part of the common threads that are woven throughout the fabric of legal reasoning. Because these criteria are pervasive in the legal record, interested readers should have no problem in pulling up examples, but for documentation purposes I will cite one case (for each criterion) that utilizes that criterion as a potential point of decision, with the key phrase highlighted in every excerpt:
Comprehensive Evidence Needed
(Jones Stevedoring Company v. Paglia; 2011 U.S. App. LEXIS 21483 at 4-5)
“Because Jones failed to produce specific and comprehensive evidence severing the connection between Paglia’s covered employment and his hearing loss, the Board properly held that Jones did not rebut the § 20(a) presumption.”
Credible Evidence Needed
(Clean Air Implementation Project, et al., v. Environmental Protection Agency, 150 F.3d 1200 (1998))
“Before EPA adopted its credible evidence rule in February 1997, 62 Fed. Reg. 8314, the agency’s air pollution standards specified not only the maximum permissible level of emissions, but also the performance or reference test that should be used as a means of sampling and analyzing air pollutants for the particular standard. See, e.g., 40 C.F.R. §§ 60.2, 61.02. A reference test is any “generic multi-use test protocol[] that measures whether a source’s emissions comply with numeric performance standards.” Paul D. Hoburg, “Use of ‘Credible Evidence’ to Prove Clean Air Act Violations,” 25 B.C. ENVTL. AFF. L. REV. 771, 784-85 (1998).”
Sufficient Evidence Needed
(Quarry Knoll II Corp. et al. v. Planning and Zoning Commission of the Town of Greenwich et al., 1999 Conn. Super. LEXIS 3425 at 30-1)
“[I]t is the commission that has the burden of marshaling the evidence supporting its decision to persuade the court that there is sufficient evidence in the record to support that decision and the reasons given for that decision. An applicant does not have to address concerns that the commission may have by evidence beyond a reasonable doub
t.”
Consistent Evidence Needed
(Hayden v. Commonwealth, 140 Ky. 634 at 636-7; 131 S.W. 521 (1910))
“Besides other ways not necessary to be considered now, a witness may be impeached by showing (1) that he has made statements different from his present testimony, (2) by contradictory evidence, and (3) by evidence that his general reputation for untruthfulness or immorality renders him unworthy of belief . . .”
But there is something else to consider in addition to these criteria, a factor which has not yet been mentioned, which is that a jury can only determine how comprehensive, credible, sufficient, or consistent is the evidence which is before them; in fact, not all evidence is admissible, for a whole host of reasons, and to fully discuss those reasons would require a detour that could take us hundreds of pages away from the instant case. Here’s the main point:
The only evidence which is subject to these criteria is admissible evidence.
It is a judge who decides whether or not evidence is admissible. In making his or her decision, there are at least two factors worth mentioning, one that evidence be relevant, and another that the evidence satisfy certain technical protocols which the legal arena has established as necessary conditions for admissibility, such as the rule that for evidence to be admissible it must not have a broken chain of custody. These factors are problematic, however, because what is relevant is going to vary with the circumstances, and in some cases, even evidence with a broken chain of custody can be sent to the jury, also depending on the circumstances, the law of the state, and which judge happens to be presiding on the bench that day.
The basic flow can be found in this excerpt from the seventh edition of Evidence by Steven Emanuel and Professor Joel Friedman of Tulane Law School (Emanuel Law Outlines, Evidence, p. C and-1):
Luckily, for our immediate purposes, we do not need to worry about the issue of admissibility; all we need to do in this section is focus on the evidence which has been admitted, and then use our criteria to analyze the weight of that evidence, as determined by how the evidence does or does not satisfy those criteria.
Let’s discuss these in turn.
Our first criterion is that the evidentiary record as a whole be comprehensive: the record must contain all the admissible evidence relevant for any particular charge, conclusion, proposition, premise, or element. In other words, it must include not only the evidence presented by the prosecution, but also the evidence presented by the defense. If the only evidence presented is that by the prosecution, and the defense is prohibited (by the judge or whatever body relevant to the case) from presenting his or her side of the issue, then obviously the 95% confidence level will not — indeed, cannot — be met.
Our second criterion is that the evidence provided by the prosecution in support of a proposition be credible: the material evidence which has been gathered, that most critical to the proof of the case, must be genuine, not distorted or, worse, manufactured. We can easily see how this criterion goes to the heart of the matter: the presumption of innocence can only be defeated with actual evidence, and unreliable evidence (lacking credibility) is not actual evidence. The importance of this criterion is indicated by the multiple mechanisms and standards established by the law to ensure the reliability of evidence, including the inadmissibility of certain hearsay evidence (i.e., indirect testimony, e.g., testimony by Mr. X that Mr. Y made a statement), the inadmissibility of evidence where the pedigree is uncertain (i.e., where the chain of custody for the evidence has not been established), evidence derived from unreliable evaluations such as polygraphs, hypnosis, "harsh interrogations", and so forth. Because the initial burden of proof is on the prosecution, if the prosecution cannot come forward with credible evidence, the confidence level remains where it began — zero.
Once we are sure that all the relevant evidence is in, and the prosecution’s evidence is credible, our third criterion is that the evidentiary record be sufficient to establish the truth of the charge — the record must consist of enough evidence to establish the truth of the conclusion. Because the burden of proof is on the prosecution, this step therefore applies primarily to the prosecution, at this stage. As a brief example, if we assume that three witness reports in favor of the prosecution are required to establish a 95% confidence level for the charge (or element of the change), and only one witness report is given, then obviously the 95% confidence level is not met.
Our final criterion is that the evidence must be consistent. If we get to this stage, the evidence provided by the defense is subject to analysis for credibility, and once that analysis is performed, we are left with our final evidentiary database. Since we now have all the evidence which we need to evaluate the charge’s confidence level, and have made sure that all the evidence we have is reliable, and have therefore determined that we have a sufficient amount of evidence to make our determination, we now need to compare our pieces of evidence and make sure that the stories they are telling are broadcasting on the same channel, i.e., are consistent. If one witness says the murderer wore a red shirt, and another witness says the murderer wore a blue shirt, then obviously the evidence is inconsistent, and since we have already determined that both witnesses have equally good vision and reliability, the standard of consistency is not met, and consequently, nor is the 95% confidence level.
With these criteria in place, we can create one or more flowchart paradigms for the purpose of analysis. The first flowchart type we will examine can be referred to as a linear flowchart. A linear flowchart constructed on the basis of the previous discussion looks like this:
This linear flowchart establishes a flow of confidence level analysis which we can deploy for every elementary factual situation. Note what is critically important about this flowchart:
If there is a “no” at any decision point in the flowchart, then you break out of the flowchart and move to the endpoint where the confidence level falls below 95%!
This is because a “yes” at every decision point is necessary: the only way a confidence level greater than 95% can be achieved is when all the decision points are positively traversed.
This analysis of the inevitability breakout flow is based on what is referred to as tautology: that is to say, the analysis logically follows based on the definition of the terms.
Remember the concept of presumption of innocence, where, at the beginning of the presentation of the prosecution’s case (before any evidence is in), the confidence level for the charge must be zero. Now, the prosecution starting at 0% confidence must climb the mountain to 95%. It can only do that with a sound evidentiary base, which takes us to our first decision point. If the evidence is not comprehensive, then by definition the evidence required to make the decision that the charge is true does not exist, and this will completely abort the ability to increase confidence level above the required 95% threshold. The same goes for the decision points of credibility, sufficiency, and consistency.
With these criteria in mind, let us analyze a fact pattern to see how this concept of breakout flow works. We will examine a charge, and the evidence for that charge provided by the prosecution and defense:
THE CHARGE
Jim, age 50, has been charged with the crime of printing counterfeit bills. The prosecution and defense have introduced the following evidence into the record:
THE EVIDENCE FOR THE CHARGE
Prosecution Evidence
Jim tried to pay for a gaming system with counterfeit notes.
The police found a printing press in his house, with $7,500 in freshly minted bills next to the printing press.
The police also found the following three books in Jim’s library: “The Art Of Counterfeiting,” “How To Counterfeit In Five Easy Steps,” and “How To Pass Counterfeit Money Without Getting Caught.”
Jim’s fingerprints were on the printing press. And the money.
A security camera in Jim’s house videotaped Jim printing the money just two days before he was arrested.
An email
sent through his Gmail account from Jim to his friend Jack quotes Jim as writing “how easy the counterfeiting racket is.”
When shown the evidence, Jim admitted to the charge, and explained that he “got into the counterfeiting game” because he “needed the money.”
Defense Evidence
Jim became an Eagle Scout at the age of 15.
A printing press . . . library books revealing intent . . . fingerprints . . . video . . . and to top it all off, a confession . . . evidence doesn’t get much better than this!
Still, we do need to run our evidence through the flowchart just to be sure. Our first decision point arises when we ask the question “is the evidence related to the charge comprehensive?” That is to say, do we have every piece of evidence — both for prosecution and defense — we need to make an informed decision regarding the confidence level? For the purposes of this hypothetical scenario, we will assume that we have all of the relevant evidence (even though it appears that the defense was, perhaps understandably, AWOL), and then proceed to the next node in our flowchart.
Our second decision point is perhaps the most important: “is the evidence for the prosecution credible?” For example, were the books in Jim’s library actually Jim’s books, or did someone plant them there? For the purposes of this evaluation, we will assume that they were his.
