2-01 Different Thresholds of Evidence: Criminal, Civil, Regulatory, Social

SECTIONS ON THIS PAGE

  • Different Situations and Their Thresholds of Evidence: Criminal Cases, Civil Lawsuits, IRS Investigations
  • “Trial” by Social Media and Public Opinion When Situations Involve “Public Figures”
  • Spoliation of Evidence
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Different Situations and Their Thresholds of Evidence:

Criminal Cases, Civil Lawsuits, IRS Investigations

In blogging about spiritual abuse in the U.S., situations can arise which require very different kinds of legal or administrative evidence levels for determining the outcome. People often confuse the standards needed, or merge American democracy or its court system with ideas from the Bible, common sense, and urban legends/misinformation. So, sooner or later there will be problems about people’s faulty assumptions of what constitutes viable evidence, enough evidence, what supposedly proves guilt or innocence, were there at least two witnesses, did you follow Matthew 18 perfectly, etc. It just gets messy.

It is important to do “due diligence” and be as factual and careful as possible – and be aware of the type of threshold of evidence that is most appropriate for whatever situation you are addressing. Here are three different situations and their thresholds:

Criminal Acts – such as failure to obey governing laws requiring mandatory reporting of known/suspected child abuse. Standard of evidence for conviction: “beyond a reasonable doubt.”

Civil Suits – such as defamation, whether it is a frivolous suit designed to shut someone up or to legitimately hold them accountable. Standard of evidence for prevailing in the lawsuit: “preponderance of evidence.”

Rarely, the possibility of an IRS investigation of a tax-exempt non-profit agency based on a Complaint submitted by a staff or board member, donor, or member of the public. Standard of evidence for potentially moving beyond a Complaint stage: “reasonable belief that the allegations may be true when considered fairly and in light of other reliable information.”

This is a crucial quote on how “preponderance” relates not to the quantity of evidence, but to the quality. I found this definition at Legal Dictionary at Law.Com helpful:

Preponderance of the Evidence. The greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses with hazy testimony, or a signed agreement with definite terms may outweigh opinions or speculation about what the parties intended. Preponderance of the evidence is required in a civil case and is contrasted with “beyond a reasonable doubt,” which is the more severe test of evidence required to convict in a criminal trial. No matter what the definition stated in various legal opinions, the meaning is somewhat subjective.

You might also want to check out the Wikipedia article on Legal Burden of Proof for more details on the multi-tiered system of U.S. evidence for trials. Don’t get caught up in trying to identify all of the abusive people and enablers involved, and all their activities, with evidence that ties it all up “beyond a shadow of a doubt.” Tell your own story, the slice of the perpetration pie that you personally experienced, be a witness to what happened. You don’t have to do the job of the prosecutor, too.

If an IRS investigation is involved, see the entire section on The Review Process in Fact Sheet 2008-14: Examination and Compliance Check Processes for Exempt Organizations. Here is an excerpt:

Upon receipt, research is done to confirm the identity of the organization in question and once this is complete, information is entered into a database to help the IRS keep track of the progress of the review.

An experienced EO revenue agent then performs a thorough technical analysis of the allegation made on the referral. The agent uses a “reasonable belief” standard to evaluate the facts and to determine whether EO should take further action. Before taking action, the revenue agent must determine that the facts create a reasonable belief that the allegations may be true when considered fairly and in light of other reliable information.

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“Trial” by Social Media and Public Opinion

When Situations Involve “Public Figures”

Probably the most messy situations we currently face are when they involve a “public figure” or celebrity who has reportedly perpetrated some form of abuse, assault, or harassment. Public figures include people with a platform for public influence. This includes pastors, authors, and speakers. The actual, applicable standard of evidence is clear when a criminal case or civil suit is involved.

It gets messy when no criminal or civil case has been filed, or when it has been dismissed (such as due to expiration of the relevant statute of limitation). New reporters, survivor bloggers, other citizen journalists, and abuse advocates and activists may seek to make a case in social media for calling these public figures to account, imposing social consequences on their actions, and putting pressure on individuals and institutions that reportedly enable these people to continue having a platform through hiring them to speak, publishing their work, and/or commending their influence.

We now live in the internet era where almost nothing can be fully erased and where social media can keep a case active for as long as it takes for a just resolution. Even if no legal trial is involved, the court of public opinion is always in session. Those under scrutiny and their supporters often attempt to implement a panoply of tactics to deflect what they see as unwarranted “attacks.” These include such arguments like:

  • You’re bitter and need to forgive this person.
  • The case was dismissed from court, so your opinion is irrelevant.
  • You misunderstand the facts.
  • You are lying.
  • You weren’t there, so you don’t know what you’re talking about.
  • You need to talk with the person in private to resolve this, not spread your lies/opinions/bitterness in public.
  • It happened long ago, he/she/they apologized, so it’s a non-issue now.

These self-serving attempts at silencing those who were/are directly and indirectly affected should not prevail. Systems that enable abuse by the few create a toxic environment that poisons the many, and the longer such situations go on unresolved and with no remediation, the more people who are negatively affected by the now-systemic abuse.

In these social media situations, I would suggest that preponderance of evidence is a helpful guide to knowing whether harm has been inflicted, and also whether satisfactory resolutions have been reached. This is one of the reasons behind developing case studies, including chronologies, narratives and any documentary evidence by people directly involved — especially survivors of victimization, resource bibliographies that tracks facts and analysis, etc. A full-blown case study is not required for justice to prevail, but it may indeed be of help to capture and categorize relevant information that makes the case for challenging a public figure and his/her “enablement entourage.”

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Spoliation of Evidence

Spoliation of evidence refers to evidence destruction or withholding. (Note that the correct spelling is spoliation, not spoilation or spoiliation.)

Destruction or withholding of evidence is a serious issue, with potentially severe consequences regardless of whether the forum is a (1) criminal case, (2) civil lawsuit, or (3) regulatory agency action (such as an IRS investigation of a Complaint/Referral against a tax-exempt non-profit organization). It does not matter whether the “spoliation” of evidence was intentional or not.

From some of the background reading on this issue, it is clear that digital documents, audio, and video can constitute relevant evidence in any of these legal actions. So, it is imperative to preserve “discoverables” – especially as the destruction or withholding of them may mean the court can interpret that act as “consciousness of guilt” and therefore assume that the evidence went against the case of spoliators. In some jurisdictions and situations, it may lead to criminal charges for spoliation of evidence or perhaps even tampering of evidence.

Some resource articles on this topic:

Matthiesen, Wickert & Lehrer, S.C., Attorneys at Law: Spoliation of Evidence in All 50 States.  Gives statute citations and summary description for each state, but does not include a section on federal laws or those for the District of Columbia. (Accessed February 11, 2018; last updated August 22, 2017.)

Wikipedia article – overview: Spoliation of Evidence.

Social Science Research Network – Case law overview – see button on this page to download PDF – Yes, I Destroyed the Evidence – Sue Me? Intentional Spoliation of Evidence in Illinois, by Michael A. Zuckerman (originally appeared in the John Marshall Journal of Computer & Information Law, 2010).

Digital Media Law Project – legal case summary – Saltsman v. Goddard (photos and comments posted online).

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