Tipping the Scales

In the court of law, there is a key threshold required for evidence known as the the standard of proof. This puts forth the required amount of evidence for a determination to be made in the specific case, and it differs between civil and criminal cases.

For example, in most civil cases, the standard of proof is a “preponderance of the evidence,” balance of probabilities, or, put another way, just enough evidence to tip the scale to a position greater than 51 percent. Basketball provides a useful illustration of this point: The winning team of a game whose final score is 51-49 points is (obviously) the team who scored 51 points.

However, neither this standard of proof nor my basketball illustration holds up for the standards required in criminal cases.  In criminal cases, the standard for determination is “beyond a reasonable doubt.” Although this standard does not require there be absolute certainty, it is merely a degree or so below that benchmark, and I espouse it can be thought of as a 99 percent threshold.

 For this threshold, I switch to an educational example: most everyone is familiar with the typical scale of Letter Grade (A-F). This can be thought of as illustration of the standard of proof used in criminal scales; that is, the goal is to strive to be as close to the top (maximum parameter) of the scale as possible. However, this goal is based on the assumption that one is striving to be a high-achieving student, whereas not everyone aspires for such things.

Therefore, let’s turn to another scale to serve as an illustration for the standard of proof needed in civil cases: Pass/Fail. This scale operates similarly, in that, the objective is to exceed the necessary threshold required to land in the ‘Pass’ territory of this grading scale.

Although both these scales function as a grading system that results in a determination of academic achievement, the student operating under the Letter Grade system is held to a higher standard. I understand how subjective factors can be significant contributors to this claim, so I want to limit my above claim to only that of scales of measurements. In this way, I can confidently say that the Letter Grade is a higher (or more complex) scale than that of the Pass/Fail scale.

Why? Because these are examples of different scales of measurement.

There are four main categories of scales of measurement: nominal, ordinal, interval, and ratio. For the purpose of this essay, there isn’t a need to expand on the definitions and details of all these, rather I would like to highlight the two aspects relevant to our aforementioned examples.

The grading system of Pass/Fail and the standard of proof for civil cases could be categorized as a nominal scale, though I’m mainly focused on the dichotomous nature of this type of scale yields. This type of scale provides answers in the form of yes/no, and it goes no further than naming the variable. For example, was there a preponderance of the evidence? Were the requirements to pass the class met?

While these questions yield a yes/no dichotomy, the standard of proof for criminal cases and the Letter Grade system can better be described as continuous variables (a higher categorization that encompasses interval and ratio). Continuous data allows for measurement of increasingly small units between data points. While it may be hard to think of accurately measuring what the degree of doubt of a jury, it is possible to estimate using a continuum, with an asymptote at the end representing the presence of reasonable doubt.

I know this is a muddled image, and I will return later to untangle it. In the meantime, it might be useful to first conceptualize a continuum using the Letter Grade system. The ‘negative’ pole is represented by the letter F, which is typically around the numerical value < 50; conversely, the letter A corresponds with the ‘positive’ pole, which is often associated with numbers > 90. With F and A serving as the two extreme poles of this continuum, the letter grades and corresponding numerical values can be measured for the space between these two points.

I imagine this illustration was easier to conceptualize, but now let us return to the criminal case continuum. The main difference between these two examples seems to lie in their end points (poles). For example, the Letter Grade continuum allowed for a simple valence-based correspondence between a positive and negative end pole that produced a tensive state; that is, the A and F end points are held in a state of tension which results in a stable range.

A physical analogy may be more fruitful in making my point than this cumbersome analysis—think of a box that’s a perfect cube, with each dimension being 2 feet. The box is in front of you and you wish to pick up the box without bending your hands (i.e., without using your grasping function). Therefore, you put each arm on the box’s sides, with palms flat and fingers extended back. How do you pick up the box?

You press each of your hands inward from the opposing side, and this force of action produces a tension between the two poles. Assuming the muscular force produced is sufficient to overcome gravity, the box can be lifted using the tension of your left and right and hand pushing into the box from equally distanced opposite poles.

Although I continue to open new metaphors and appear to be avoiding my promised return to the topic of the criminal case, the two main points I hoped to elucidate through this box illustration is that the range for the Letter Grade continuum is fixed, static, and dependent upon two poles that are equal in their qualities, while being opposite in both nature (polarity) and direction (in a tensive opposition).

Finally, the long awaited return—the criminal case continuum regarding the standard of proof being “beyond a reasonable doubt.” Absolute certainty is something that we can be absolutely certain can never be achieved. Though this paradoxical and self-contradicting, like many aspects of life, it nonetheless is logically true, especially in the particular context in which we are concerning ourselves.

When I introduced the standard of proof for criminal cases at the start of this essay, I used the term threshold; moreover, I noted that the threshold for criminal cases can be thought of as beyond 99 percent. However, I also used this term for civil cases, so I now seek to further specify the subtle, but significant, differences in my usage of the term threshold, as this in fact has been the aim of this entire exposition.

A threshold may be defined as,“a level, point, or value above which something is true or will take place and below which it is not or will not” (Merriam-Webster, n.d.). From all the examples and illustrations that I have presented in this essay, the standard of proof of “beyond a reasonable doubt” is unique in how it utilizes thresholds.

Unlike the Letter Grade system, it does not have two poles that are equally distanced apart, as A is from F. Because the threshold points for being “beyond a reasonable doubt” are not—nor could be—clearly defined, measured, and quantified. Instead, it has a degree of flexibility due to the fact it involves human reasoning and judgment.

Therefore, the main indicator that allows for it to be the highest standard of proof rests in the word “beyond.” This is where it becomes tricky and why it is a source of personal interest.

To go beyond something implies that same something must be already present in the initial state. For example, to receive the Medal of Honor for going “above and the call of duty” implies the person was already acting from a state of duty, but they went further from this initial state.

The point here is the same state of being is present before the threshold is exceeded, therefore, the award for going “above and beyond” is a matter of magnitude; that is, the degree of duty reached a certain threshold that merited the medal. Consequently, the person is now distinguished from other service members because of them having received the Medal of honor.

Similarly, the jury that finds a defendant guilty of a crime has deemed the threshold of reasonable doubt has been sufficiently exceeded to make this determination, which, consequently, sets the defendant apart through the new categorization of the person being convicted of a crime i.e., a criminal.

However, if the initial state for the solider who goes on to receive a Medal of Honor for exceeding the degree of this initial state, then what is the initial state of the defendant in the example of the criminal case?

The American Justice System is based on the notion that everyone is “innocent until proven guilty.” Herein lies the philosophical and linguistic challenge. In philosophy, and linguistics, the terms negative and positive correspond to negations and affirmations, respectively. For example, to say, “that person is guilty” is an affirmative statement, whereas, saying “that person is not guilty” is a negation. Therefore, the initial state of being innocent is equivalent to being not guilty.

Now, I have been speaking from the perspective of the defendant, but it is the jurors who operate within the framework of determining whether the defendant is guilty or innocent “beyond a reasonable doubt.” Therefore, the jurors’ initial state is presumably that of doubt. However, the definition of doubt consists of phrases, such as “the lack of confidence,” “to consider unlikely,” “an inclination not to believe” (Merriam-Webster, n.d.).

So, if the juror’s initial state of being is that of doubt, and the definition of doubt is to be filled with a lack or absence of something, then it is a state of negation. Similarly, the defendant’s initial state of being is that of innocence, which is equivalent to that of being not guilty—therefore, both the jurors and the defendant begin from an initial state of negation. That is, they are each working from a place of the absence of something; the defendant with their absence of guilt, and the jurors with their absence of judgement regarding the defendant’s guilt. However, the jurors do presume the defendant not guilty until sufficient evidence is presented to exceed the threshold of “beyond a reasonable doubt.”

This example of the criminal case can be thought of as working against a state of being that is already present; that is, if the jurors’ doubt can be crudely quantified in units of doubt, then the more units of doubt are removed from whatever their initial level of total doubt units is, the more likely they will eventually surpass the threshold required for conviction.

Because their initial state of being is a negation, it is through the negative process of removal that an end state of a guilty verdict can ever be reached. Convict or acquit are the two options the jury has; however, conviction is the only option of these two that is an affirmation. Thus, to arrive at an affirmative conclusion from a negative initial state is only through a negative process of movement toward the threshold point (i.e., it is necessary to have two negations to form an affirmative outcome).

Let us review what we’ve discovered thus far in our exploration: first, we have surveyed a few types of commonly used scales, such as Letter Grade and Pass/Fail system and Criminal and Civil court standards of proof. We have seen that Pass/Fail scales operate as dichotomous functions existing in a perfect balance and outputting a yes/no type of result.

From here, we observed that the mechanisms of the Letter Grade system are more sophisticated by including a series of points with equal intervals between two given points that remain in a state of tension between the two end values that serve as parameters for the scale’s range. These end values are poles due to them having a polar nature and corresponding to the states of being of negation and affirmation.

Lastly, we’ve spent a great deal of time analyzing and circumambulating the two standards of proof used in civil and criminal cases. The bulk of our time as been spent on the criminal case side because we have found that the threshold for civil cases share many similarities with that of the dichotomous nature of the pass/fail scale, albeit more nuanced than this scale, however, much of this nuance is actually being explored simultaneously as we explicate the nature of the criminal case’s standard of proof.

Therefore, let us return to the questions we’ve brought to the surfaces from our excavation of the various aspects and dimensions involved in reaching a determination in the criminal case.

Before proceeding, let me clarify where are point-of-view will lie, as I muddied the waters with bringing up the initial state of the defendant in my earlier writings. Our point-of-view moving forward will be focused on that of the jury, which I will no longer be referring to as jurors. More broadly, our focus is on understanding the nature of this unique type of system for arriving at a decision or verdict.

As we previously laid out, the jury enters the criminal case with the initial state of being in doubt. It is their duty to listen to evidence from this place of doubt and suspended judgement; though the defendant is presumed to be innocent (not guilty) this in fact has no bearing on the case for our current purposes, so let this also be a point that we overlook for now.

If the jury’s initial state is doubt, then they exist in a state of negation due to doubt being defined in terms of the absence of lack of belief or judgment. Thus, we are not dealing with an additive situation, in which, for example, salt is added to a container of water that already contains a degree of salt until a certain threshold of saltiness is met; no, instead, we are dealing with a case of removal or subtraction of doubt. That is, if the defense attorney provides evidence to that demonstrates the defendant’s innocence, this is not additive in the same manner of the salty water example, rather it is additive insofar that it is through this series of additions that a subtraction is made, namely, that of the jury’s doubt being sufficiently removed to move “beyond” the threshold of “a reasonable doubt.” 

Now, what we are claiming is as follows: The jury starts in an initial state of doubt. As evidence exonerating the defendant is presented, the degree of total doubt is decreased. When the jury’s doubt is decreased sufficiently, there will be a point when the threshold of reasonable doubt is exceeded.

I think this is the crux of the issue: the threshold is surpassed by the process of subtraction, which logically appears strange. As how does something that is being removed from ever reach the point of exceeding some threshold?

However, this is precisely the paradox, as well as the imperative of knowing the initial state of something; for example, it only seems paradoxical if we do not categorize and label terms appropriately with their valence or polarity. If we note that the initial is a negation and the process of removal is also a negation, then it logically stands to reason that this indeed can and does produce an affirmation. However, if any of these valences are flipped, then the we fall back into it being paradoxical. For example, if we assume the initial is a negation but the process of removal is an affirmation, say we reframe it as the process of accumulating evidence, then we have a negation and an affirmation resulting in an affirmation of innocence.

If you are already or beginning to feel quite confused, then you are following along right there with me. The purpose of my writing this long exposition about the different types of scales, thresholds and initial states of being, and slight variation in definitions of words and their usage is to underscore how complex the whole affair of communication truly is.







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