Preponderance of the Evidence in a Civil Trial

[Steve Whitlock]

(03-21-2020 12:51 PM)David Lockmiller Wrote:  I had a question on the subject of the Preponderance of the Evidence in a Civil Trial and recalled that Lincoln had something to say on this subject. So, I Googled the subject and the top return was . . .

https://rogerjnorton.com/Lincoln102.html

The Fehrenbacher entry on this topic is at the bottom of Roger's page.

In a civil case, Lincoln was once asked to define the term preponderance of the evidence. He said: "Gentlemen of the jury, did you ever see a pair of steel yards or a pair of store scales? If you did I can explain, I think, to your satisfaction the meaning of the word. If the plaintiff has introduced any evidence, put that in the scales and have it weighed. Say it weighs sixteen ounces. If the defendant has introduced any evidence in the case, put that in the scales; and if that evidence weighs sixteen ounces, the scales are balanced and there is no preponderance of evidence on either side. There are four witnesses on each side of this case. If the plaintiff's evidence weighs one grain of wheat more than the defendant's, then the plaintiff has the preponderance of evidence - his side of the scales goes down, is the heaviest. If this defendant's evidence weighs one grain of wheat more than the plaintiff's, then the defendant's side of the scales goes down, is the heaviest; and that movement of the scales tells what is the preponderance of evidence. Now apply this illustration to the state of your mind on weighing the evidence for the plaintiff and defendant." Recollected Words of Abraham Lincoln compiled and edited by Don E. Fehrenbacher and Virginia Fehrenbacher (Stanford, Stanford University Press, 1996), p. 243.

The civil case took place in Coles County and the jury was having much trouble understanding the phrase "preponderance of the evidence." Finally, Lincoln tried his hand at explaining the terminology to the jury.

Fehrenbacher gave Herndon's evidence a "D" rating because "[t]here is no assurance that Herndon himself heard these remarks. He did not ordinarily accompany Lincoln on the circuit."

Lincoln's explanation to the jury is both mathematical and non-mathematical. How much does a grain of wheat weigh? For this is the difference necessary for a jury to determine the "preponderance of the evidence" in any civil case to this day.

I have posted this thread because this is not the first time that Roger as a source of information was listed by Google as the first choice in a Google search of mine. But to be fair to other sources, "Lincoln" is often one of the terms of my Google searches. So, the result is not so surprising.

Thank you, Roger.

I shared the above post with a research teammate, Richard "Rich" Hileman, a retired trial lawyer and genealogist, because I thought he might find it interesting.

Perhaps he anticipated that I have no clue as to the Fehrenbacher book, and I thought Rich's explanation might help others who may not be familiar with the Fehrenbachers.

"As for the Fehrenbacher’s rating system, I have my own peeve with that. I don’t know what you know about their book, so sorry if I go over ground you already know. It’s a great book in that it collects, thousands of recollected words of Lincoln reported by others. Then they have a grading system. The first three grades, a, b, and c are objective. A is a recollected direct quote attributed to Lincoln and recorded within a few days of when it is claimed Lincoln said it—e.g. all the reports of the Lincoln-Douglas debates. So As are claimed by the Fehrenbachers to be the most reliable recollected Lincoln statements. B is an indirect quote recorded within a few days. C is a quote attributed to Lincoln but not recorded contemporaneously. Those are their three objective categories. The next category is D which is “a quotation about whose authenticity there is more than average doubt.” Lots of things reported by Herndon they put in this category, including Herndon’s statement that Lincoln told him his mother was illegitimate. Their argument for this is ridiculous. I’ve got to conclude now, but if you’re interested in their argument, let me know and I’ll get back to you on it.

Take care.

Rich"
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I was blind, but now I see, sort of.

Steve W.