Clifford: Lake against Hobbs, the ruling // Scott Johnson

Arizona attorney Jack Clifford was invited to complete his reporting on Kari Lake’s trial. He also commented on the Christmas Eve decision by the judge dismissing Lake’s election lawsuit. is the AP story. Jack writes:

I am writing to share my final thoughts regarding the Lake/Hobbs litigation. These thoughts are mine and not those of my clients or my firm.

Everyone who is interested in the story knows that Judge Peter A. Thompson ruled for the defendants on all charges on December 24, 2022. here 4531 (maricopa.gov)..

The court allowed two counts from the original ten to proceed to Trial: 1) The claim that the malfunctions in the ballot-on-demand (“BOD”) printers on Election Day were intentionally caused and that the malfunctions resulted a changed outcome (Complaint Count I); and 2) The claim that Maricopa County violated its election procedures manual (“EPM”) regarding chain of custody procedures so as to result in a different election outcome (Complaint Count IV).

After laying out the “clear, convincing” burden of proof Lake must carry, the court summarized the evidence and witnesses presented by Lake and then evaluated them. For the proposition “it’s.,” the court looked at Arizona case law dating back to 1898. . . It is unwise to establish any rule that could compromise the accuracy and certainty of an election. (See opinion for the citations.

The “clear, convincing” burden of evidence is much higher than the “preponderance” standard used in civil cases but lower than the “beyond reasonable doubt” standard usually applied in criminal cases. The preponderance standard for evidence is considered to be 51 percent probable, or simply “more probable than not.” However, the “beyond any reasonable doubt” standard is closer at 98% or 99 percent, or just plain more likely than not. The “clear, convincing” standard lies somewhere in the middle. Although I don’t know if it is true to say that something must be 75% more likely than not to meet the burden, you get the idea.

What difference does it make to your life? It makes a huge difference. Here’s how. Lake’s case was largely hearsay. Ms. Honey relied upon what an anonymous witness said about Runbeck employees adding ballots to the stream of ballots without a chain of custody and in violation of law. She didn’t see it happen with her own eyes. The defense counsel was unable cross-examine the person who allegedly witnessed the deed occur.

These statements are hearsay and not made in courtroom. Hearsay statements are generally not admissible at trial. The law of evidence favors testimony that is limited to what witnesses see or experience, and not what someone else says.

If an exception to the hearsay rule is applicable, hearsay can be admitted as evidence in court. A judge can admit hearsay statements to a case, but they should be given the weight that the judge thinks they merit. Hearsay statements, however juicy or sexy, may not be accepted in a case where the plaintiff must prove the standard of proof.

Ms. Honey also relied upon a voicemail from Betty or Betsy (I’m not sure which) stating that the chain of custody documents for the 300,000 early votes dropped in drop boxes on election day couldn’t be found and presented before the trial. Betty could have made a stronger case if she came to court to talk in person. This did not happen.

Ms. Honey seemed open to the possibility that such “election-day drop off” chain custody documents might exist, but she hadn’t seen them yet. A party that is unable or unwilling to produce the relevant documents may be held responsible for inferring that there are no such documents. This is true even if the civil case is filed more than a year after it was filed. This case was tried six weeks after the election. No such inference was made.

Robert Baris’ testimony may have benefited from a similar analysis. He completed a survey that he considered an exit poll. He also repeated the comments of voters. Surveys or polls are a compilation of what others say and provide an analysis of the results. None of the respondents to Baris’s poll were present in court or were subject to cross-examination.

Surveys are now often admissible into evidence in civil cases that are based on an exception from the hearsay rule. However, the issue of their weight is almost always an issue. The jury or judge, the trier of facts, can ignore the results if they wish. They can give the survey a persuasive weight, a small weight, or none at any point.

If they believe the survey was flawed or that the survey taker was biased or prejudiced, or if he is not skilled enough in his craft, then such polling evidence will likely not be accepted, even in a civil case. Baris was attacked by the Defense with the FiveThirtyEight rating and Dr. Mayer’s smirch of his reputation.

The court refused to substitute Baris’s opinion for the voters’ view on the matter. The court stated:

However, elections are decided by votes and not polling responses. The Court has not found any authority suggesting that exit polling should be used in this way. Exit polling takes place after a vote has been cast. This seems to contradict the authority.

If Lake’s burden were merely a preponderance, Baris’s testimony could have won the day. But this is not the case.

The court stated this: “Indeed. To the extent that Mr. Baris suggested a range of outcomes, he suggested that – with his anticipated turnout increase of 25,000 to40,000 votes on Election Day, the [final] outcome could vary between a [2,000-vote margin] for Hobbs and a [4,000-vote] margin for Plaintiff [Lake].” It is unlikely that Baris’s work failed to show clearly that Lake would win in any way you look at it.

Perhaps this is an example that illustrates the point. Just 40 years ago, I began my legal career. Exit polls and similar surveys were frequently excluded from evidence in trademark cases. Courts believed they were hearsay. They were eventually accepted by courts in the 1970’s and 80’s, when the “give survey evidence only what it deserves” approach became popular. It was important to note that Baris testified that his method included a “range of outcomes” and that his work saw a scenario in which Hobbs would win. That is my view of the question.

Kari Lake has pledged to appeal.