Alternative facts (law)
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Alternative facts is a term in law to describe inconsistent sets of facts with plausible evidence to support both alternatives.[1][failed verification] In some jurisdictions, there are rules governing how a party can state two versions of the facts, such as an absence of the person's knowledge on which one of the alternatives is true.[2]
Alternative pleading
One use of alternative facts is in alternative pleading. This means that one set of facts is used for a pleading and another set of alternative facts is used for pleading in the alternative.[3][failed verification]
Civil procedures
In the courts of England and Wales, it used to have rules for statements of case which expressly allow alternative facts. A guideline for drafting statements of case suggests that when raising the alternative facts, it should only be the case that the party understands that one of those sets of facts is true but does not know which. However, the alternative facts cannot be raised if the party has a knowledge to conclude that one of them must be a lie.[2]
In the United States, Federal Rules of Civil Procedure 8(d)(2) states that "A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient."[4] Some courts cite this rule to allow pleading alternative facts which are contradictory or inconsistent facts on alternative grounds. However, there are limitations in some courts that pleading alternative facts is only allowed when the party is in doubt about the facts.[5] In some civil procedures that allow pleading alternative facts, a party may plead inconsistent defenses or inconsistent claims when the party is uncertain about the true facts of the case at the time of pleading. However, the alternative facts cannot be completely opposite. The inconsistency of alternative facts in pleading may not be used as an admission against that party.[6] In Virginia, a party may plead alternative facts against alternative parties for the same event.[7]
Pleading amendments
Issues of amending to plead inconsistent facts or alternative facts were discussed in the English law case of Clarke v Marlborough Fine Art (London) Limited. In that case, the High Court of Justice, Chancery Division refused to allow an amendment to add additional claim that is inconsistent with the original claim as that will cause their pleading to state inconsistent facts. However, the court would have allowed amending to plead alternative facts because the claimant would not need to state that both sets of facts are true.[8]
Criminal cases
A defendant in a criminal case may claim as to facts to have not committed the crime, and also claim with alternative facts that if the defendant had committed the crime (contradicting the first pleading), it would have been by reason of insanity.[9]
Cross-examination techniques
In cross-examinations, expert witnesses are often faced with "hypothetical questions" and presented with "alternative facts" that are more consistent with the view of the other party.[10] Additionally, in the cases that an opinion is based on factual assumptions which are observed only by lay witnesses, the expert witness may be asked to modify the opinion when presented with alternative facts which can be absurdly hypothetical. If the expert witness is not flexible enough to modify the opinion, it may be an indicator of a bias.[11]
In criminal cases, the same cross-examination technique is used by prosecutors to present alternative facts to gain concessions. This is a method for a prosecutor to gain advantages from defense witnesses to aid the prosecutor's case. During a cross-examination, a prosecutor may question a defense witness who testifies as to facts by offering plausible alternative facts such that the witness may change the opinion.[12]
Jury verdicts
In a criminal case, When a prosecutor puts forth alternative facts which are inconsistent which each other, the inconsistency may present confusion to the jury during deliberation of the verdict in term of the requirements of being unanimous. For example, Constitution of Oregon requires that the guilty verdict of a first-degree murder must be unanimous. In State v. Zweigart, 344 Or. 619 (Or. 2008), the Oregon Supreme Court held that "a jury must agree, not only that a defendant is guilty of a crime, but also on all the facts material to prove the crime." The court had an opinion that the jury must unanimously agree on which set of the alternative facts to use such that all the facts in that set material to prove the crime. The jury will not be allowed to have half of jurors to use one set of facts and the other half of jurors to use another set of facts out of those alternative facts in order to prove guilty even if all of them agrees that the defendant is guilty.[13]
References
- ^ Band, Christa (May 30, 2003). "Statements of Truth - Alternative Facts.(Clarke v Marlborough Fine Art (London) Limited and Marlborough International Fine Art Establishment)". Mondaq Business Briefing. Retrieved 25 January 2017.
- ^ a b Emmet, David (2016). Drafting (18th ed.). Oxford University Press. p. 26. Retrieved 25 January 2017.
- ^ "Ohio Midland, Inc. V. Proctor (S.D.Ohio 11-28-2006)". Retrieved 27 January 2017.
- ^ "Federal Rules of Civil Procedure: TITLE III. PLEADINGS AND MOTIONS: Rule 8. General Rules of Pleading". Retrieved 25 January 2017.
- ^ "Ryals V. El Paso Cnty., Sheriff Richard Wiles, Jail Commander Wisneski, Corporal Morales, G. Martinez". Retrieved 25 January 2017.
- ^ Hille, Robert B. LexisNexis Practice Guide: New Jersey Pleadings (2017 Edition ed.). LexisNexis. ISBN 9781522126065. Retrieved 25 January 2017.
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has extra text (help) - ^ Circuit Court Clerks’ Manual - Civil (PDF) (Rev: 7/16 ed.). Virginia Department of Judicial Services. Retrieved 25 January 2017.
- ^ Loughlin, Paula; Gerlis, Stephen (2012). Civil procedure. London: Cavendish. p. 194-195. ISBN 9781135336158.
- ^ "Alternative pleading". Law.com. Retrieved 27 January 2017.
- ^ Byard, Roger; Payne-James, Jason (2015). Encyclopedia of Forensic and Legal Medicine (2 ed.). Academic Press. ISBN 9780128000557. Retrieved 27 January 2017.
- ^ Stone, Marcus (23 September 2011). "Cross-examining Expert Witnesses in Criminal Trials". Criminal Law and Justice Weekly. Retrieved 27 January 2017.
- ^ Cross-Examination For Prosecutors (PDF). National Highway Traffic Safety Administration. p. 8.
- ^ "State v. Zweigart, 344 Or. 619 (Or. 2008)". 2008: 640-641.
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