Evidence is the Place where Law, COVID 19 and Liberty Meet

“Are you going to believe me or your own eyes?”  This famous quote most often attributed to the Marx Brothers in “Duck Soup” has been altered on several occasions over the years adding the word “lyin” because it makes the question even more poignant by suggesting the conclusion.  The distinction between the evidence we see (or hear) and the alleged proof we are force-fed is often quite different, even acrimonious.  As a trial lawyer and advocate for the pursuit of happiness, aka individual liberty, these issues create the perfection intersection for discussion.

To begin, proof portends at least an implied conclusion and hurdles the concept of any critical thought.  Making the statement that one has proof that something works, or that proof is necessary before taking some action, already has the result in mind.  The result may be desired in some instances or unwanted in others.  However, the truth remains that when one argues in “proof” language, one already sees the result and seeks to reach it or to stop it. 

Evidence demands thought and asks the viewer/listener to reach a thoughtful conclusion.  The law deals in evidence, not proofs though many attorneys and “experts” in law use the term.  “The proofs will show. . .” is one of my most despised lines during a trial.  In law, burden of proof has different standards or levels precisely because to meet a burden, evidence is required and then the trier of fact, usually a jury, places those facts on the applicable burden scale for the type of case at hand.  When proofs are proclaimed, facts are usually missing or at least highly malleable.

The COVID 19 crisis poses the question of proof versus evidence quite nicely.  On t.v. and radio, medical experts or “scientists” have repeatedly said that there is no conclusive proof that certain therapies like hydroxychloroquine are effective in treating the virus.  They chirp that clinical trials, statistically significant testing and conclusive data are needed to prove that the relatively safe drug works.  The counter belief is that many physicians, also scientists one may add, have ordered the therapies and relieved very sick patients of the virus.  The results are offered as evidence that the therapies are effective at least in many individual cases.

Evidence is better than proof, at least as any individual should approach the question.  There is a simple question at the heart of the issue.  If you were sick (possibly dying) and offered a drug that was relatively safe and was shown to have been effective in many other individual patients, would you choose to undergo the therapy based on that evidence?  Or, would you choose to forego treatment and wait for the scientific proof from the experts who are looking at the statistical data?  How about for your child, or husband, or mom?  We all know the answer and some pretend they do not.  The same debate raged over HIV many years ago and the same Dr. Fauci was at its center.  As is often the case in matters where science meets ethics meets common sense, those on the side of evidence become those wanting the proof, and those on the side of waiting for proof want to proceed on the evidence.  Interesting?  Not really, just foolish.  

In a trial, juries decide cases based on evidence presented combined with their everyday life experiences, or common sense as we call it.  The proponents of evidence desire no more than allowing individuals to be presented with the facts and then deciding for themselves what actions are warranted.  The advocates of proof want to look for conclusions and then decide for everyone else.  In short, evidence allows liberty and proof suppresses it.  Like Devo, “I’ll say it again in the land of the free”—“Freedom of choice is what you’ve got; Freedom from choice is you want.”

The happy want evidence so they can act, the unhappy want proof so they have an excuse to wait.

KPF

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