Findings, music, and occasional reflections by Paul Woodward

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Let’s not pretend the Kavanaugh facts are unknowable

Caleb Mason, a litigator and former federal prosecutor, writes:

There’s nothing arcane or even particularly difficult about the investigatory steps the government could take to reach a reasonable factual conclusion about the Kavanaugh allegations. I simply cannot understand why the Judiciary Committee refuses to use the resources it has—namely, subpoena power, through which the committee can compel witnesses to testify and produce documents.

The committee’s approach to the Kavanaugh hearings reinforces the false image of trial practice as just throwing two people up there and letting the jury decide whom to believe. That’s not what trials are. When both sides have adequate resources (an important caveat), trials—and the months-long periods of document production and deposition testimony that lead up to them—are extraordinarily good vehicles for arriving at the truth.

I have the same satisfying feeling in every case as the evidence gradually fills in the gaps and a story begins to emerge. People leave remarkably specific paper trails of their activities, and are remarkably honest when they’re under oath. Most witnesses are very hesitant to outright lie in sworn testimony. They’ll squirm; they’ll be nonresponsive; they’ll have sudden failures of memory. But a good trial lawyer eats all that for breakfast; the coin of the realm in our business is the ability to pin a reluctant witness down to a concrete, definite answer. It’s common, moreover, for lawyers to investigate and litigate allegations of decades-old behavior. There’s nothing inherently unfair in a proceeding that seeks to uncover facts about such allegations. [Continue reading…]

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