The Corner

Law & the Courts

Ford’s Testimony Has Changed Everything and Nothing

Christine Blasey Ford on Capitol Hill in Washington, D.C., September 27, 2018 (Melina Mara/Reuters)

A few days ago I was on Slate’s Gabfest podcast and in a back-and-forth with the New York Times’ Emily Bazelon about Dr. Ford’s potential testimony, when I noted that live testimony can transform the dynamics of any dispute. This can be true even if that testimony doesn’t add one new material fact to the narrative. While there are miles to go yet, the reaction to Dr. Ford’s testimony is demonstrating this reality.

Across both sides of the ideological spectrum you see the same words: “Compelling.” “Credible.” “Heartbreaking.” We’re human. Unless you have a heart of stone, we hate to see a person’s pain, and there is often an instinct towards sympathy and comfort. The book of Proverbs notes an ancient truth: “In a lawsuit, the first to speak seems right, until someone comes forward to cross-examine.”

In this case, because the format consistently interrupts the cross-examination before it can gain any momentum, Dr. Ford’s first statement retains its emotional power. There is no real test of her claims. To be clear, I’m not blaming Rachel Mitchell, the attorney the GOP hired to question Dr. Ford. Not even Clarence Darrow could effectively examine a witness if he was interrupted every five minutes by emotional tributes to the witness’s strength, courage, and virtue.

Moreover, we also often have this mystical faith in our own ability to discern the truth by examining tone, demeanor, and likeability. She was “real.” He’s been “wooden.” These things impact us far more than we’d like to admit. Yet if there is one thing we know from our modern re-examinations of the impact of witness testimony on case outcomes, our faith in ourselves is deeply misplaced. We’re not very good at determining who’s correct and who’s mistaken by watching people talk. That’s one reason why innocent people go to prison, including for rape.

So, given the human dynamics of watching a person in obvious pain, the lack of real cross-examination, and our misplaced faith in ourselves to discern truth, it’s entirely possible that Dr. Ford’s testimony changed everything. That she moved the needle decisively in her favor.

But it’s also very important to note that Dr. Ford’s testimony has changed nothing about the underlying evidence in the case. She has made her claim, there are no corroborating witnesses. No one else can place the two of them together at the party — not even the witnesses she’s identified. She is inconsistent or forgetful on a number of key points. She can’t even identify who brought her to the party or who took her home. He’s denied the claims and will deny them again.

That’s thin — very thin — evidence of sexual assault. The evidence is no stronger this afternoon than it was before Dr. Ford testified. When this controversy began, I said that her claims were serious enough that, if true, Kavanaugh should not be confirmed. Further, I said that that she should only have to carry the lowest burden of proof — to establish that her claims were more likely than not. If you step back, look at the totality of the evidence and consider that she has brought no new evidence to the committee, I still don’t believe she has met that minimal burden.


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