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Can Alternative Facts ever be REAL Facts?

The answer is simple: Maybe. It depends. Like everything else I write about. It depends on evidence, and a careful analysis of any problems with that evidence.

The bottom line is that rarely, if ever, is truth absolute.

Take the latest feud over something that seems so basic: Did more people attend Trump’s Inauguration than Obama’s?

Alternative Facts Case #1

The masses have been all a-twitter (yes, pun intended) about Kellyanne Conway’s comments regarding whether two photos taken of the crowds at the respective events were accurate.

Even though Obama’s photo seems to show a much larger crowd, Conway stated that her opposing view was based on “alternative facts”. The pundits went nuts over this statement. But speaking as a criminal defense attorney who has spent his entire career exploring alternative ways to look at evidence, I had no problem with the concept.

There is almost always more than one way to look at evidence.

The Law provides tools to help us navigate these disagreements: trials, evidence and burdens of proof, as well as lawyers to argue about the evidence and a trier of fact (judges or juries) to decide who proved what.

Who has to prove what is called the “burden of proof”. In criminal cases it takes different forms. When someone is arrested the prosecutor basically has to prove that, viewing the evidence in the light most favorable to the State, it is more likely than not that someone committed a crime. Probable cause. If proven, that person can be charged with a crime and possibly held in jail.

But if that same person demands a jury trial, the Government no longer gets the benefit of the doubt. Instead of viewing the evidence most favorably for the State, before convicting the jury must:

A: Presume that the defendant is innocent


B: Decide that guilt is proven guilty beyond a reasonable doubt.

The way we get from A go B is through trials. Evidence must be produced to prove the case. Lawyers get to ask questions and introduce other evidence to help the jury evaluate the strength of that proof.

How would that work here? Simple: both sides would show the photos in question to the trier of fact.

Who has the burden is an interesting issue. If Obama’s side did, then the Trump advocates could point out that the photos don’t actually show the exact same piece of ground (have a look – the Obama photo appears to cover a bigger area, unless you look closely).

They might investigate the photos to determine whether other photos exist that were taken at different times that show different crowd sizes.  They could argue (as some have) that most of the crowd was stuck outside the Mall at the time the photo was taken, which is another reason that photos taken at different times would be useful to see.

And so on.

At the end of the day, the jury, in this case the public, could decide. Without this analysis taking place, there is no way to be sure beyond a reasonable doubt.

If the Trump side had the burden of proof, things would be different. Then the Obama side could argue that the photos create a reasonable doubt about the claim that Trump’s crowd was bigger. Trump would have to overcome this doubt, which shows why it is best not to have the burden of proof.

In Washington a good example of not wanting to take on the burden of proof is found in Self Defense cases. Defense attorneys argue (correctly, of course) that the State has the burden of proving “lack of self defense” beyond a reasonable doubt. Prosecutors like to incorrectly argue that the Defense has the burden of proving self-defense. Every rookie lawyer knows that taking on the burden is best avoided.

If you can’t back up what you allege, it’s not a good thing.

Why everyone is talking about this is another issue altogether, but the dispute provides a good way to show how every day current events relate to how things work in court, my main goal with these posts.

Alternative Facts Case #2

The second evidentiary issue in the news along these lines right now is the statement that millions of people voted illegally. This is an example of what happens when, even viewing the evidence in the light most favorably to the moving party, there is not enough evidence to establish a prima facie case. Why do I say that? Because as far as I can tell, there is no evidence to support Trump’s claim. If there were, that means millions of people committed the crime of voter fraud.

Stop and think. This would constitute a massive crime wave. Millions of prosecutions. There must be hundreds, if not thousands, of prosecutors out there who support Trump and his agenda. If they had evidence to establish probable cause that people voting against Trump committed crimes, they would be charging these criminals. The fact that this is not happening speaks for itself.

There isn’t even any need to talk about how such massive voter fraud would require thousands of voting officials, again including many Trump supporters, to turn a blind eye to fraud being committed right under their noses. There do not appear to be any specific claims of that occurring.

Alternative Facts Case #3

The final current issue involving proof and evidence is the influence of the Russians, if any, on the election; something that should disturb every American.

As a great statesman once said“Against the insidious wiles of foreign influence, the jealousy of a free people ought to be constantly awake.” That was George Washington. This situation would have been his biggest fear. Ronald Regan must also be spinning in his grave right about now.

There is no possible way to know one way or the other whether the release of emails obtained illegally by Russians, assuming that they did the hacking, changed the election results. The fact is that there is simply no way to go back in time and recreate the situation with and without the hacking and see how it would have played out.

However, there is circumstantial evidence. Here the strongest circumstantial evidence would be poll numbers showing how support changed after new hacked emails surfaced. But there are many arguments that polls do not prove anything, beginning with questions about the accuracy of the polling itself. Pollsters didn’t seem to do so well predicting the election results, after all.

Again, this would come down to who had the burden of proof and what they had to prove. But, here it’s a tie. It is impossible to prove with certainty that the hacking changed the election results. But, it is equally impossible to say that it did not. When anyone says that the investigation revealed that the hacking had no effect on the election, it is factually impossible to back up.


I have to smile when I see normal people talking about stuff like this.  Criminal defense attorneys like me have spent their entire lives arguing that things are not always what they seem to be, even when photographs are involved, and that the only way to really evaluate those “things” is to explore every possible viable alternative perception of what purports to be absolute reality.

These three issues demonstrate the confusion that ensues when disagreements are addressed outside of courtrooms, where long established rules and practices help ensure an accurate analysis. It gets messy. And confusing. And inaccurate.

Think about that next time you are tempted to criticize lawyers and the courts.