Sorting Out the Evidence – From Pristine to Lousy
Investigators are in the business of gathering evidence. Beyond gathering, there is the equally important job of analyzing. Good fact gatherers need to report on evidence but also where it comes from and how reliable it may be.
Evidence was my favorite law school course by far (so perhaps not surprising I work with evidence for a living). What I remember from about day one was my wonderful teacher and future colleague Peter Tillers reminding us that for something to be evidence, it doesn’t have to be very good evidence at all. Just a little bit of a nudge to push knowledge forward will be enough.
If someone says they saw something, that’s evidence. It could be rock solid, it could be garbage. In court, that’s for the finder of fact – jury or judge – to figure out. (Fed. Rules of Evidence 104(b): “When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.”)
When we do our due diligence work for investors, we never come out and say in a report, “this man is a liar” or “we doubt the reliability of her resume.” Instead, we present the evidence and let the reader decide.
A CFO says he has an advanced degree from Caltech. We can’t check that with Caltech without his permission, but we notice that databases never have a single address for him in California, despite the claimed degree and a few jobs before and after. Could the person really have the degree?
Of course. He could be a scrupulously private person who kept his Chicago cell phone the whole time, lived with family in Pasadena and never got any mail or deliveries in California while studying there. It’s up to our client to ask more questions, or maybe to let us interview a few professors to see if this guy was ever enrolled in their small and selective program. If so, did he graduate?
Evidence also comes from omissions – the hardest thing to program computers to spot. If someone has a 1.5 year gap between their M.A. and their first job, that could mean a variety of things: Time taken to travel, time spent at a seminary but ultimately deciding not to enter the clergy (we’ve seen it), or the inability to get a job because of bad recommendations. Most commonly, it means leaving a first job off the resume because it wasn’t very interesting or impressive, and it was 20 years ago.
Where evidence comes from is something the rules care a lot about. Even non-lawyers tend to know about the concept of hearsay being excluded – something that the person testifying doesn’t have first-hand knowledge about. But anyone who has taken evidence knows there are many exceptions to the rule.
One is a recording made in an ordinarily conducted activity (Rule 803 (6)). Here is a list of passengers who took flight 5644 on Feb. 8 last year. As long as the airline says it’s a genuine list, you don’t need an eyewitness to say that the people on the list probably took the flight in order to admit the list. The theory is that the airline automatically produces these lists thousands of times a day. There’s not likely to be any special effort to include Mr. Jones on this list if he didn’t really fly.
Compare that to a Dun & Bradstreet report about a company. Who fills out the information about the size of the company’s payroll? It’s annual sales? Mr. Jones provides the numbers if he owns the company. That is not like an airline manifest. It’s much more open to manipulation. It’s evidence, but of a very different quality.
The same goes for a LinkedIn Profile. Indispensable if you want to know what someone wants you to think about their career trajectory. But you need to remember they can leave out anything they want. They can stretch a few dates to cover inconvenient periods of unemployment following a firing, and shove an honorary doctorate into educational qualifications that, at first glance, can look like they have a PhD. (We’ve seen all this too).
It’s all evidence, of course, but it’s up to us to help guide our clients through it so that after proper consideration, they can give it the weight they think it deserves.
