Two random, although somewhat related, comments on juries, trials, and standards of proof:
First:
In my post on the verdict in the Isiah Thomas trial, I wrote:
To no one's surprise, Thomas continued to insist he did not do the things Browne Sanders accused him of doing (or more precisely, the things that the jury found he did, in fact, do).
A reader e-mailed the following:
To be precise, not "in fact" but "on the balance of probabilities" or
as they say colloquially, "probably did do."
...which is enough, in a civil case, to award damages, and allow the
defendant in the case to maintain his denial of the facts and maintain
that he is actually not guilty of the allegations.
All we ever really have in a jury verdict is a "balance of probabilities" because the jury cannot know with any certainty whether some fact is true or not (even with the benefit of video evidence). It only can draw its best inferences based on what it hears and sees. The difference between the standard of proof in a civil case (more likely than not) and criminal (beyond a reasonable doubt) is the level of balancing of these probabilities before we will say something has been proven as fact.
But we operationalize this process as finding matters "as fact" and determining "the truth" about what happened in the real world simply because we have no choice if we want a judicial system that can firmly and finally resolve legal and factual disputes. For that reason, I stand by my shorthand description of the jury having found "as fact" that Thomas did make the comments and take the actions at issue. It does not mean that what the jury determined is true in any absolute sense; maybe it is, maybe it is not--we simply do not know. But, for legal purposes, the jury's determination establishes that X did occur.
This does not mean, of course, that Thomas cannot continue to declare that the jury was wrong or to insist that he did not do anything wrong. And that would be true regardless of whether the verdict had been civil or criminal. But I was not derogating Thomas's right to continue to proclaim his non-liability.
Instead, I was calling Thomas on a disingenuous rhetorical device. By continuing to speak in terms of not doing what he was accused of by Browne, rather than what the jury had concluded, he ignores the verdict. But the verdict changes the narrative. Thomas can continue to insist he did not do it. But he must refute not only what this interested woman says, but what 12 disinterested people not otherwise involved in the real-world events concluded that he did.
Second:
In his SI.com column on the Thomas verdict, Mike argues that the fact that Thomas was only held civilly liable but not criminally culpable, with the attendant differences in standards of proof, may be a "salient" consideration for Stern in determining whether to impose some NBA punishment (fine, suspension, etc.) immediately. This concern for standards of proof has come up a lot in other discussions of league punishments in the wake of judicial determinations.
But I do not see why it makes a difference. We insist on findings "beyond a reasonable doubt" in criminal cases because it is the State seeking to punish someone by taking away their life and liberty, so we want to be a bit more certain (even if absolute certainty is impossible) before we permit the State to do so. But that requirement not carry into any other legal context. A person can be deprived of his property (e.g., forced to pay damages to another or forced to stop allowing his factory to pollute the stream or forced to rehire a wrongfully terminated worker) at the demand of another private person even if the evidence only makes it more likely than not that some legal rules were violated. If there was enough to support a civil jury's conclusion that Thomas and the Knicks engaged in unlawful conduct, I do not see why the NBA should hesitate to use that conclusion to impose its own punishment.
The only difference is that the unlawful conduct in which Thomas engaged is defined by the legislature as a civil wrong (a wrong against another individual), while the unlawful conduct in which, say, Michael Vick, engaged is defined by the legislature as a criminal wrong (a breach of the societal peace). But either is unlawful conduct. And if the NBA wants to police its members, unlawful conduct should be all that matters.
Consider that the NBA could, if it chose, set up its own private arbitration system and conduct a de novo trial of this case. And it could, and likely would, use "more likely than not" as the standard of proof in its hearings. If so, why should the NBA hesitate in, essentially, applying collateral estoppel to the jury findings on that same standard of proof by imposing league sanctions based just on the jury verdict?
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