Evidence Of Things Not Seen

"The Proof

By Frederick Schauer

Belknap/Harvard, 298 pages, $29.95

I fully expected to dislike Frederick Schauer's "The Proof: Uses of Evidence in Law, Politics, and Everything Else." My suspicions, in violation of the oldest of rules about judging books, were aroused by the dust-jacket summary: "In the age of fake news, trust and truth are hard to come by." Over the last five or six years I have read or skimmed a stack of books purporting to explain the rise of deception, misinformation and ludicrous reasoning in American politics. Almost without exception these books target the "lies" of one side and ignore those of the other, and exhibit minimal awareness that raw data may be interpreted in more than one way.

"The Proof" is vastly superior to that sort of book. What moved Mr. Schauer to write it was the looseness with which the words "evidence" and "proof" are used in the news media. Why was it suddenly common to point out that a public official -- typically Donald Trump or his associates -- made an assertion "without evidence"? Were politicians before Mr. Trump in the habit of offering "evidence" for their dramatic claims? Often, Mr. Schauer points out, "commentators on a variety of issues conflate the lack of evidence with falsity." Hence all those modifiers: "concrete evidence," "conclusive proof," "direct evidence" and so on -- phrases suggesting "that the lack of overwhelming proof beyond a reasonable doubt for some conclusion is sufficient to reject a conclusion for which there actually is at least some evidence."

Mr. Schauer displays a level of intellectual honesty one rarely encounters these days. His political opinions are, if I'm interpreting the evidence of this book correctly, decidedly on the left. He is a law professor at an elite institution (the University of Virginia), he accepts elite consensus views on Covid-19 mitigation efforts, and feels strongly about climate change ("it is a fact that the earth is warming, although some people and political parties are committed to denying that fact"). Most tellingly of all, perhaps, he drives a Subaru.

And yet Mr. Schauer is not afraid to examine his subject in ways that don't align with his political preferences. In a section on hearsay, for example, Mr. Schauer cites a statement in the New York Times about Melania Trump's supposed ability to speak several languages. The Times reporter writes that Mrs. Trump has "constructed an image of herself that is not always supported by fact." For evidence of this claim, the reporter refers to a biography of Mrs. Trump by the Washington Post reporter Mary Jordan in which the biographer claims that Italian, French and German "photographers and others" who have worked with Mrs. Trump over the years said "they never heard her use more than a few words of those languages." This, Mr. Schauer concludes, is "triple hearsay." The claim about Mrs. Trump's non-use of various European languages runs from those unnamed photographers to the author of a biography to the Times reporter to the reader. Not only that -- the photographers' original claim is evidence, albeit weak evidence, that Mrs. Trump does speak those languages. (I would add a further bit of evidence for Mrs. Trump's status as a polyglot: We know she is fluent in at least one language other than her native Slovenian -- English.)

This is delightful stuff, all the more so coming from an author whose political sympathies clearly lie far from the Trump family. Chapters on the state of criminology and the nature of lying are similarly engaging.

I found points of disagreement. Mr. Schauer takes a more favorable view of the use of statistical evidence in court proceedings than I do. The debate pertains mainly to civil cases in which the plaintiff only has to prove that the "preponderance of the evidence" supports his case (a lower burden than the beyond-a-reasonable-doubt standard required in criminal cases). In essence, prove the defendant is 51% likely to be guilty, and you win. But the subject of statistics is relevant in criminal law, too. We know, Mr. Schauer notes, that the vast majority of married women killed in their homes were murdered by their husbands. Is that statistical likelihood admissible as evidence in a murder trial?

Courts have tended to say no. Mr. Schauer, noting that any one data point may not be sufficient to arrest or convict but is still valid as evidence, tends to say yes.

He attributes the prejudice against the juridical use of statistical data to ill-defined "intuitions." Maybe, but those intuitions are sound. When the state imputes moral guilt to the accused, the accused and his family have a right to know that he is not the victim of numerical bad luck. It is folly, furthermore, to encourage government officials -- prosecutors, in this case -- to believe they can deprive people of their liberty partly on the basis of facts and figures that have nothing to do with the case. Allowing data analysis into questions of guilt, moreover, is an easy way to diminish the state's sense of moral accountability. Sorry you were wrongly convicted, but we were only following the data!

The book's chapter "Of Experts and Expertise" is both refreshingly candid and, in my view, basically wrong. It is, in essence, an argument for why people who know virtually nothing about climate science -- a group that includes Mr. Schauer, this reviewer and nearly everyone reading these words -- are nonetheless right to carry out the momentous changes to our society and economy urged by most climate scientists. Mr. Schauer readily concedes that science has been dramatically wrong before: He discusses astrology and phrenology. (He might also have mentioned the more consequential instances of eugenics and lobotomization.) But unlike these bogus sciences, he writes, "climate science rests on physics, geology, and chemistry, along with the foundational principles of science in general." In the end, it's a matter of trust. "In the language of countless exasperated parents whose attempts at reasoning with their children have failed, 'because I said so' captures well what is at the heart of the idea of authority and thus of deference to that authority."

Some readers will respond hotly to that defense of expert opinion, but I have to admire Mr. Schauer for acknowledging what is so plainly true about the consensus liberal worldview of which this book is a fine expression: that for all the talk of evidence, it is as much about faith as any religion.

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Mr. Swaim is an editorial-page writer for the Journal." [1]

1.REVIEW --- Books: Evidence Of Things Not Seen
Swaim, Barton. 
Wall Street Journal, Eastern edition; New York, N.Y. [New York, N.Y]. 09 July 2022: C.9.