LAW for DUMMIES (including Greg)
Reef Fish
judges, and members of the jury, on HOW to decide on a "guilty
verdict" in various courts of law, from civil to criminal.
Greg Mossman repeated ad nauseum his ERROR:
Greg> There are three and only three standards of evidence used in
Greg> U.S. courts. (1) Preponderance, (2) Clear and Convincing, and
Greg> (3)Beyond a Reasonable Doubt. Any lawyer knows this. Any
Greg> judge knows this. Any law professor knows this.
Note in particular Greg's clause "and only three".
In his frantic search via google, Supreme Court opinions, etc., to
support his unsupported claim, Greg came across this in one the
Supreme Court Opinions he cited, but obviously overlooked:
" Similarly, this Court has used the "clear, unequivocal and
convincing" standard of proof to protect particularly important
individual interests in various civil cases."
That proved there IS a "clear, unequivocal and convincing" standard!
Guess what? That was PRECISELY the 4th standard studied in the
Gastwirth paper, which Greg steadfastly refused to read, since I
had referenced it to him in May 27, 2004.
RF> Joint Colloquium Lecture to the Harvard Law School and the
RF> Harvard Department of Statistics, on the topic, "Statistics and
RF> Law," the substance of which was later published in
RF> The American Statistician 55 (February 1992).
The FOUR standards are:
1. Preponderance of the evidence
2. Clear and convincing evidence
3. Clear, convincing, and unequivocal evidence
4. Evidence beyond a reasonable doubt
Greg> There are three and only three standards of evidence used in
Greg> U.S. courts. (1) Preponderance, (2) Clear and Convincing, and
Greg> (3)Beyond a Reasonable Doubt. Any lawyer knows this. Any
Greg> judge knows this. Any law professor knows this.
There were 10 judges in the Gastwirth panel, each of whom gave
PROBABILITY OF GUILT required to convict a defendant under each of
those FOUR standards.
On average, these 10 judges rated (1) to be 50+%; (2) to be
around 60%; (3) to be around 75%; and (4) to be about 90%.
The large MAGNITUDES of differences of "probability of guilt" in
the FOUR standards alone unequivocally indicated there there are
MORE than the three standards Greg cited as the ONLY three.
In the Supreme Court opinions Greg cited, there was also this:
" Nonetheless, even if the particular standard-of-proof catchwords
do not always make a great difference in a particular case,
adopting a "standard of proof is more than an empty semantic
exercise."
BINGO! Greg had argued and argued that the standards "clear and
convincing" and "clear, convincing, and unequivocal" are mere
semantic exercise, and that
Greg> There are three and only three standards of evidence
Greg is WRONG, notwithstanding the dozens of posts and Mbs of
bandwidth he wasted in any attempt to welsh his losing bet.
The above is a concise and precise summary of that aspect of LAW
which should be understood by even DUMMIES.
Enjoy.
-- Bob.
Charlie Hammond
"Reef Fish" <Large_Nass...@Yahoo.com> writes:
O.K., I'm a dummy, so I'll ask.
..
>The FOUR standards are:
>
>1. Preponderance of the evidence
>2. Clear and convincing evidence
>3. Clear, convincing, and unequivocal evidence
>4. Evidence beyond a reasonable doubt
..
>There were 10 judges in the Gastwirth panel, each of whom gave
>PROBABILITY OF GUILT required to convict a defendant under each of
>those FOUR standards.
>
>On average, these 10 judges rated (1) to be 50+%; (2) to be
>around 60%; (3) to be around 75%; and (4) to be about 90%.
It is my impression that only standard 4, "Beyond a reasonable Dobut",
is used to convict a _criminal_ defendant. Am I correct?
Is there short answer to the question, "Where/when are these different
stadards used?" If so, what is the answer?
"About 90%" is "beyond a reasonable doubt" seems well below what
I would expect to be required by the reasonable man test.
Does this really suggest, as it seems to, that 10% of convicted felons
are actually not gulty?
--
Charlie Hammond -- Hewlett-Packard Company -- Ft Lauderdale FL USA
(hammond@not@peek.ssr.hp.com -- remove "@not" when replying)
All opinions expressed are my own and not necessarily my employer's.
Greg Mossman
news:1106317726.7...@f14g2000cwb.googlegroups.com...
> Note in particular Greg's clause "and only three".
>
>
> In his frantic search via google, Supreme Court opinions, etc., to
> support his unsupported claim, Greg came across this in one the
> Supreme Court Opinions he cited, but obviously overlooked:
>
> " Similarly, this Court has used the "clear, unequivocal and
> convincing" standard of proof to protect particularly important
> individual interests in various civil cases."
Read Burger again:
"The intermediate standard, which usually employs some combination of the
words "clear," "cogent," "unequivocal" and "convincing," is less commonly
used, but nonetheless "is no stranger to the civil law." Woodby v. INS, 385
U.S. 276, 285 (1966). See also C. McCormick, Evidence 320 (1954); 9 J.
Wigmore, Evidence 2498 (3d ed. 1940). One typical use of the standard is in
civil cases involving allegations of fraud or some other quasi-criminal
wrongdoing by the defendant. The interests at stake in those cases are
deemed to be more substantial than mere loss of money and some jurisdictions
accordingly reduce the risk to the defendant of having his reputation
tarnished erroneously by increasing the plaintiff's burden of proof.
Similarly, this Court has used the "clear, unequivocal and convincing"
standard of proof to protect particularly important individual interests in
various civil cases. See, e. g., Woodby v. INS, supra, at 285 (deportation);
Chaunt v. United States, 364 U.S. 350, 353 (1960) (denaturalization);
Schneiderman v. United States, 320 U.S. 118, 125 , 159 (1943)
(denaturalization)."
The intermediate standard. Not 'an' intermediate standard, but 'the'
intermediate standard.
'Clear, unequivocal and convincing' is absolutely the same as 'clear and
convincing' you moron. There is no fourth standard.
How can you continue to be so obtuse?
> Guess what? That was PRECISELY the 4th standard studied in the
> Gastwirth paper, which Greg steadfastly refused to read, since I
> had referenced it to him in May 27, 2004.
Guess what? A single paper by a statistics professor does not in any way
supersede the views of the U.S. Supreme Court.
> The FOUR standards are:
>
> 1. Preponderance of the evidence
> 2. Clear and convincing evidence
> 3. Clear, convincing, and unequivocal evidence
> 4. Evidence beyond a reasonable doubt
The three standards are:
1) Preponderance of the evidence
2) Clear and convincing evidence (sometimes erroneously called "clear,
convincing and unequivocal) - the "intermediate" standard
3) Beyond a reasonable doubt
1, 2, 3. Count 'em.
You owe me $1,000. You are a welsher.
Greg Mossman
news:olaId.6360$5E7....@news.cpqcorp.net...
> In article <1106317726.7...@f14g2000cwb.googlegroups.com>,
> "Reef Fish" <Large_Nass...@Yahoo.com> writes:
>
> O.K., I'm a dummy, so I'll ask.
Don't ask a dummy. You won't learn anything new.
> It is my impression that only standard 4, "Beyond a reasonable Dobut",
> is used to convict a _criminal_ defendant. Am I correct?
The highest standard of the three (there is no 4th standard) is required to
convict a criminal defendant. Yes.
> Is there short answer to the question, "Where/when are these different
> stadards used?" If so, what is the answer?
The lowest standard (preponderance) is the primary standard used in civil
cases. In quasi-civil cases where there's more at stake involving a
defendant's rights than simply monetary damages, a court may apply the
intermediate "clear & convincing" (or "clear, convincing, and unequivocal")
standard which requires more proof than a mere preponderance but less than
beyond a reasonable doubt. There really isn't any clear bright line between
the three standards. It's mainly a way of confusing jurors so they don't
quit their day jobs.
> "About 90%" is "beyond a reasonable doubt" seems well below what
> I would expect to be required by the reasonable man test.
> Does this really suggest, as it seems to, that 10% of convicted felons
> are actually not gulty?
Not at all. While the preponderance standard is legally defined as >50%,
there are no such equivalent percentages for the two higher standards of
proof. After all, each piece of evidence has it's own degree of legal
weight (relevance and probative value). There's no way to simply add up the
numbers which obviously confuses hopeless statistics professors like Bob and
the Gastwirth that he cites who think everything in life can be reduced to
numerical values.
Reef Fish
after Greg had given SEVERAL absolutely wrong answers!
Greg Mossman wrote:
> "Charlie Hammond" <hammond@not@peek.ssr.hp.com> wrote in message
> news:olaId.6360$5E7....@news.cpqcorp.net...
> > In article <1106317726.7...@f14g2000cwb.googlegroups.com>,
> > "Reef Fish" <Large_Nass...@Yahoo.com> writes:
> >
> > O.K., I'm a dummy, so I'll ask.
>
> Don't ask a dummy. You won't learn anything new.
Worse than that. Greg showed once again, he gave you WRONG answers!!
SEVERAL wrong answers!
>
> > It is my impression that only standard 4, "Beyond a reasonable
Dobut",
> > is used to convict a _criminal_ defendant. Am I correct?
>
> The highest standard of the three (there is no 4th standard) is
required to
> convict a criminal defendant. Yes.
That is correct.
That is also where Greg erred in May 2004 when he argued and argued
that any standard that has word "unequivocal" is a higher standard.
That was his bet summarized elsewhere by me as CHAPTER 1.
Note that Greg had argued that "unequivocal" left NO ROOM for any
doubt and was a higher standard than the criminal court standard
of "beyond a reasonable doubt". Of course I said that was not true!
This was what Greg had said (the "SMOKING GUN" here):
Greg> the "unequivocal" standard of proof may
Greg> potentially exceed the "beyond a reasonable doubt" standard
Greg> because "unequivocal" allows for no doubt. That's what he
Greg> said, that's what I said.
Read the above VERY, VERY carefully and see how there is absolutely
NO DOUBT that Greg contradicted what he is saying now, that the
highest standard is that used in a criminal court.
Greg contradicted himself in TWO ways: Admitting a 4th that is
NOT between his (1) and (3), while he was making the error that
the "unequivocal" standard is a HIGHER standard than "beyond a
reasonable doubt".
Now is THAT is not a SMOKING GUN and a BLOODY GLOVE on Greg on
the CHAPTER 1 bet which he is trying to welsh his loss, I don't
know what could be more.
The "he" Greg referred to was Chief Justice Burger. Greg simply
MIS-INTERPRETED what Burger had said!
see further details under CHAPTER 1 in http://tinyurl.com/7y5pj
That was also the substance of our first bet, which Greg accepted,
because he thought he had Burger behind him. He has been welshing
his bet ever since.
Greg now changed his tune, but still trying hard to weasel out of his
bet, while completely muddled in both the THEORY and PRACTICE of
law in the courts!
> > Is there short answer to the question, "Where/when are these
different
> > stadards used?" If so, what is the answer?
>
> The lowest standard (preponderance) is the primary standard used in
civil
> cases.
That much is correct, and it is also the one that required the LEAST
evidence of GUILT to convict the defendant, hence a probability of
guilt of barely over 50% will do.
> In quasi-civil cases where there's more at stake involving a
> defendant's rights than simply monetary damages, a court may apply
the
> intermediate "clear & convincing" (or "clear, convincing, and
unequivocal")
> standard which requires more proof than a mere preponderance but less
than
> beyond a reasonable doubt. There really isn't any clear bright line
between
> the three standards. It's mainly a way of confusing jurors so they
don't
> quit their day jobs.
This is all Greg's bullshit!
Other federal courts apply AT LEAST two other standards between (1)
"Preponderance of the evidence" and (4) "beyond a reasonable doubt".
It is true that there are no clear bright lines between the FOUR
standards -- which was why Gastwirth did his study, to see where the
ACTIVE judges drew the lines among the 4 standards. That's where
the 50%+, 60%, 75%, and 90% came in as to where the judges drew the
line as the minimum probability of GUILT to convict a defendant in
the courts with those different standards.
> > "About 90%" is "beyond a reasonable doubt" seems well below what
> > I would expect to be required by the reasonable man test.
95% is the figure often cited -- which was also the probability given
by ONE of the 10 judges. The others gave mostly around 90% and one
of the judges erred badly (as Greg did) and rated the criminal court
standard to require a LESS probability of guilt than the "clear,
convincing, and unequivocal" standard.
> > Does this really suggest, as it seems to, that 10% of convicted
felons
> > are actually not gulty?
In a court of law, the only verdicts (besides a hung jury) are "guilty"
or "not guilty".
The use of the PROBABILITY of guilt is to guide the judge/jury to limit
the Prob( convicting the INNOCENT ) which would be 10% in the case in
question.
Using the "clear, convincing, and unequivocal" standard, the
probability
of convicting the INNOCENT would be approx. 25% or less, accourding to
the judges in Gastworth's panel of federal judges.
> Not at all. While the preponderance standard is legally defined as
>50%,
> there are no such equivalent percentages for the two higher standards
of
> proof. After all, each piece of evidence has it's own degree of
legal
> weight (relevance and probative value). There's no way to simply add
up the
> numbers which obviously confuses hopeless statistics professors like
Bob and
> the Gastwirth that he cites who think everything in life can be
reduced to
> numerical values.
Greg is DEAD WRONG here, once more!
Greg is completely ignorant about a vast amount of literature in the
topic of "statistics and law", and the use of "subjective
probabilities"
in assessing guilt or innocense, as in the applications reported in
the Gastwirth paper.
-- Bob.
Reef Fish
> "Reef Fish" <Large_Nass...@Yahoo.com> wrote in message
> news:1106317726.7...@f14g2000cwb.googlegroups.com...
>
> > Note in particular Greg's clause "and only three".
>
You should, and re-read what you YOURSELF said Burger said, which
I had posted under "Greg Mossman's SMOKING GUN".
I actually had said "SMOKING FUN" at one place and didn't even get
a typo correction from Greg.
>
>
> 'Clear, unequivocal and convincing' is absolutely the same as 'clear
and
> convincing' you moron. There is no fourth standard.
Not according to Greg Mossman in the SMOKING GUN <repeated for
readers' convenience>:
-------------- begin excerpt of SMOKING GUN post ----------------
http://tinyurl.com/47s5d
This was what Greg had said (the "SMOKING GUN" here):
Greg> the "unequivocal" standard of proof may
Greg> potentially exceed the "beyond a reasonable doubt" standard
Greg> because "unequivocal" allows for no doubt. That's what he
Greg> said, that's what I said.
Read the above VERY, VERY carefully and see how there is absolutely
NO DOUBT that Greg contradicted what he is saying now, that the
highest standard is that used in a criminal court.
Greg contradicted himself in TWO ways: Admitting a 4th that is
NOT between his (1) and (3), while he was making the error that
the "unequivocal" standard is a HIGHER standard than "beyond a
reasonable doubt".
--------------- end excerpt of SMOKING GUN post ---------------
> How can you continue to be so obtuse?
That's what I ask you Greg. And you are supposed to be a LAWYER.
>
> > Guess what? That was PRECISELY the 4th standard studied in the
> > Gastwirth paper, which Greg steadfastly refused to read, since I
> > had referenced it to him in May 27, 2004.
> > The FOUR standards are:
> >
> > 1. Preponderance of the evidence
> > 2. Clear and convincing evidence
> > 3. Clear, convincing, and unequivocal evidence
> > 4. Evidence beyond a reasonable doubt
And Greg HIMSELF had said so, except he wrongly put it as (5), a
higher standard than (4), rather than where it belonged, (3):
Greg> the "unequivocal" standard of proof may
Greg> potentially exceed the "beyond a reasonable doubt" standard
Greg> because "unequivocal" allows for no doubt. That's what he
Greg> said, that's what I said.
Greg> You owe me $1,000. You are a welsher.
Who's a welsher, Greg? You had welshed TWO bets in one
SMOKING GUN exhibited!
-- Bob.
Greg Mossman
> You should, and re-read what you YOURSELF said Burger said, which
> I had posted under "Greg Mossman's SMOKING GUN".
I don't need to. It's very clear what Burger wrote. There are two
standards of proof at either end of the spectrum, plus a third intermediate
standard of proof. The concept may confuse you, but I'm obviously a lot
brighter.
> I actually had said "SMOKING FUN" at one place and didn't even get
> a typo correction from Greg.
Because it's fun watching you go down in flames?
> Greg> the "unequivocal" standard of proof may
> Greg> potentially exceed the "beyond a reasonable doubt" standard
> Greg> because "unequivocal" allows for no doubt. That's what he
> Greg> said, that's what I said.
But "unequivocal" is not a legal standard of proof as used in American
courts. It may be a standard of proof outside the legal system, but
American courts only use three distinct standards.
> Read the above VERY, VERY carefully and see how there is absolutely
> NO DOUBT that Greg contradicted what he is saying now, that the
> highest standard is that used in a criminal court.
Not at all. You really don't understand English very well, do you? Or
maybe it's that senility thing, where you start to revert to a childhood
prior to the time you learned English.
> Greg contradicted himself in TWO ways: Admitting a 4th that is
> NOT between his (1) and (3), while he was making the error that
> the "unequivocal" standard is a HIGHER standard than "beyond a
> reasonable doubt".
The "unequivocal" standard is a higher standard than "beyond a reasonable
doubt" but it is not one of the three legal standards of proof. Why is that
concept so difficult for you to understand?
Reef Fish
Greg Mossman wrote:
> "Reef Fish" <Large_Nass...@Yahoo.com> wrote in message
> news:1106540130.4...@c13g2000cwb.googlegroups.com...
>
> > You should, and re-read what you YOURSELF said Burger said, which
> > I had posted under "Greg Mossman's SMOKING GUN".
>
> I don't need to.
Sickening welsher that you are, Greg.
> > Greg> the "unequivocal" standard of proof may
> > Greg> potentially exceed the "beyond a reasonable doubt" standard
> > Greg> because "unequivocal" allows for no doubt. That's what he
> > Greg> said, that's what I said.
>
> > Read the above VERY, VERY carefully and see how there is absolutely
> > NO DOUBT that Greg contradicted what he is saying now, that the
> > highest standard is that used in a criminal court.
Greg, you are a sickening welsher:
>
> > Greg contradicted himself in TWO ways: Admitting a 4th that is
> > NOT between his (1) and (3), while he was making the error that
> > the "unequivocal" standard is a HIGHER standard than "beyond a
> > reasonable doubt".
Welsher, that's shameful enough.
To call yourself a lawyer and don't know the first thing about LAW,
and that's pretty sick, Greg!
Regarding Gastswirth's paper, and your libelous statement about
him and statisticians, he had this to say,
"Now the data I used in the paper came from the Fatico law case.
The trial judge, Jack Weinstein, asked his colleagues to put
numbers for the different criteria. I believe any quarrel the
lawyer <that's referring to Greg Mossman> has is not with
statisticians but with the judges in New York, especially
Weinstein (who is pretty famous)."
"The data came from judges not statisticians as did the description
of evidentiary standards."
Greg, you have been KO'd!
There are FOUR standards in the data that came from the trial
judge Jack Weinstein, and the probability judgments came from
10 JUDGES in New York!
Greg Mossman the welsher! You have been caught with the
SMOKING GUN, and now you've been KO'd by Gastwirth, the author
of the paper and the judges in New York.
Just go away, you shameless WELSHER!
-- Bob.
Greg Mossman
> "The data came from judges not statisticians as did the description
> of evidentiary standards."
Too bad he doesn't verify his facts.
> Greg Mossman the welsher! You have been caught with the
> SMOKING GUN, and now you've been KO'd by Gastwirth, the author
> of the paper and the judges in New York.
> Just go away, you shameless WELSHER!
Now I see your (and Gastwirth's) confusion. Fatico was a 1978 case.
U.S. v. Fatico, 458 F. Supp. 388 (E.D.N.Y., 1978)
In that case, Weinstein, a District Court judge, commented on prior Supreme
Court decisions as follows:
"(I)n situations where the various interests of society are pitted against
restrictions on the liberty of the individual, a more demanding standard is
frequently imposed, such as proof by clear, unequivocal and convincing
evidence." In re Ballay, 157 U.S.App.D.C. 59, 73, 482 F.2d 648, 662 (1973).
The Supreme Court has applied this stricter standard to deportation
proceedings, See Woodby v. Immigration & Naturalization Serv., 385 U.S. 276,
285-86, 87 S.Ct. 483, 487-88, 17 L.Ed.2d 362 (1966). * * * In Woodby, the
Court explained: " To be sure, a deportation proceeding is not a criminal
prosecution. But it does not syllogistically follow that a person may be
banished from this country upon no higher degree of proof than applies in a
negligence case." * * * In terms of percentages, the probabilities for
clear, unequivocal and convincing evidence might be in the order of above
80% under this standard."
Note the dates of his cites: 1966 and 1973. In other words, old news.
After the Addington case in 1979, the U.S. Supreme Court (which is
controlling over District Courts) has distinguished only three:
For instance, here's what Justice Blackmun says in Santosky v. Kramer:
"The logical conclusion of this balancing process is that the "fair
preponderance of the evidence" standard prescribed by Fam. Ct. Act @ 622
violates the Due Process Clause of the Fourteenth Amendment. n18 The Court
noted in Addington: The individual should not be asked to share equally with
society the risk of error when the possible injury to the individual is
significantly greater than any possible harm to the state." 441 U.S., at
427.
Thus, at a parental rights termination proceeding, a near-equal allocation
of
risk between the parents and the State is constitutionally intolerable. The
next question, then, is whether a "beyond a reasonable doubt" or a "clear
and
convincing" standard is constitutionally mandated."
455 U.S. 745 (1982)
The "clear, convincing, and unequivocal" standard has disappeared from
American jurisprudence. The Supreme Court has deemed it equivalent to
"clear and convincing". Therefore it never existed. See also:
" In analogous settings before 1991, the Supreme Court also had adopted a
clear and convincing evidence standard for civil cases involving
unconventional relief-in the face of congressional silence about the
appropriate burden of proof. In Woodby v. INS, 385 U.S. 276 (1966), the
Supreme Court observed that "Congress ha[d] not addressed itself [in the
Immigration and Nationality Act] to the question of what degree of proof is
required in deportation proceedings," then observed that this is "the kind
of question which has traditionally been left to the judiciary to resolve."
Id. at 284. Reasoning that deportation proceedings fall somewhere between
ordinary civil litigation and criminal litigation, the Court held that
"clear, unequivocal, and convincing evidence" must support a deportation
order-the same burden used in analogous cases involving civil fraud,
expatriation, adultery, illegitimacy, lost wills and oral contracts. Id. at
285 & n.18."
White v. Burlington Northern, U.S.C.A. 6th Cir., Nos. 00-6780; 01-5024
(4/14/2004)
""Phrases such as `clear and convincing,' `clear, cogent, and
convincing,' and `clear, unequivocal, and convincing' have all
been used to require a plaintiff to prove his case to a higher
probability than is required by the preponderance-of-the-
evidence standard." California ex rel. Cooper v. Mitchell
Bros.' Santa Ana Theater, 454 U.S. 90, 93 n.6 (1981). Simi-
larly, we have held that "the `clear and convincing' burden is
not the same as proof beyond a reasonable doubt. . .. [A]fter
discussing the preponderance of the evidence and beyond a
reasonable doubt standards, the [Supreme] Court referred to
the clear and convincing standard as `an intermediate standard
of proof.' " United States v. Meza-Soria , 935 F.2d 166, 169
(9th Cir. 1991) (quoting Santosky v. Kramer, 455 U.S. 745,
756 (1982)); see also Black's Law Dictionary 577 (stating
that clear and convincing evidence "indicat[es ] that the thing
to be proved is highly probable or reasonably certain. This is
a greater burden than preponderance of the evidence,. . . but
less than evidence beyond a reasonable doubt . . . .").
Andreiu v. Reno, U.S.C.A. 9th Cir., No. 99-70274
When are you sending my check? I'll use the $1,000 for my plane fare and
cost of our IQ tests when you agree to meet me and settle the bet like
gentlemen.
Lee Bell
> I don't need to. It's very clear what Burger wrote. There are two
> standards of proof at either end of the spectrum, plus a third
> intermediate standard of proof. The concept may confuse you, but I'm
> obviously a lot brighter.
Brighter is not yet conclusively proven. Saner, on the other hand, is
clear, convincing and unequivocal.
Lee