Coronavirus reveals we all need a course in evidence
Category: NewsVia: groucho • last year • 10 comments
By: Len Niehoff (Detroit Free Press)
Numerous public officials and individuals have made dreadful decisions about how to assess and respond to the threat posed by COVID-19. Those errors reveal a fundamental flaw in our K-12 and collegiate education systems.
We have failed to teach a subject of critical importance, and as a result have imperiled our health, our economy, and our republic.
We teach it in law school. We call it Evidence.
When I secured my first job as a law school professor many years ago, my sister asked what I would be teaching. I enthusiastically responded "Evidence!" She laughed and exclaimed "Evidence? There is a class called 'Evidence?'"
I understand why the answer struck her as funny. Discovering that law school has a class called "Evidence" is like finding out business school has a class called "Money" or dental school has a class called "Teeth." It seems elemental to the point of silliness.
But Evidence is one of the most important courses law students take. It focuses on the principles that govern the admissibility of testimony, documents, and other things at trial. Trials seek to arrive at the truth so justice gets done, and evidence helps us ascertain that truth.
Evidence law consists of a complicated body of rules and cases. Many students find it one of their hardest courses. Little wonder: Setting protocols to figure out the truth makes for a heavy lift.
Still, two simple ideas animate the vast majority of evidence principles. The first is that evidence must be relevant. This means that the evidence must make a fact that matters to the case either more or less likely true.
If A is charged with murdering B, then evidence showing they were in the same town at the same time is relevant. A's confession to the murder is even more so.
Relevant evidence helps. Irrelevant evidence wastes time, distracts attention, breeds confusion, and does not advance the search for truth.
The second principle is that evidence must be reliable, meaning that it must be sufficiently trustworthy to deserve consideration. We ban hearsay from trials because we can't test its reliability.
Let's say that a prosecutor calls C to testify that D said that A planned to kill B. This testimony may meet the relevance standard, but also leaves us with lots of questions about its reliability.
Is D a dependable witness? How did D know A's plans? Did C hear D correctly? Was D joking or trying to frame A? Because we have only C's hearsay testimony, we cannot cross-examine D on these matters and probe the trustworthiness of the evidence.
COVID-19 has revealed our societal failure to understand what evidence is and to respect how it works. National and local political leaders have made decisions that ignored the evidence. Members of the general public have proved slow to accept the evidence. Measures adopted to help flatten the curve have been met with virulent protests, despite the evidence that they are working."
COVID-19 has no monopoly here. We've done little to address global warming, despite the evidence. We pretend the wild escalation of the national debt has no consequences, despite the evidence. And so on.
We have become a nation of magical thinkers, making decisions based on what we hope is the case and whom we want to believe. When confronted with opposing evidence, we do not engage with it. We dismiss it and stick a label on it: "fake," "phony," "biased," etc. And then we mistake that label for evidence.
A partial solution to this problem would be to require every high school and college student to take a course in evidence. I do not mean one that focuses on legal doctrine, although concepts like relevance and reliability would have a place in it. I mean a class that helps all of us understand what does—and does not—count as proof of something else.
Without such training, we will continue to make decisions based not on what is true but on what we wish were true. Things like pandemics don't care about our preferences. They have a ruthless commitment to reality. We need one, too.
We cannot wait. We all need to becomes students of evidence right here, right now. If we don't, we will not just repeat the errors of the past. We will blunder into fresh ones that were avoidable, but that our disregard of truth has made apocalyptic.
Len Niehoff is a Professor from Practice at the University of Michigan Law School .