Sunday, March 28, 2010

"Direct" versus Circumstantial Evidence

The Court of Appeals for the Fifth Circuit of the United States has put another nail in the coffin of the mistaken notion that "direct" evidence is necessarily better than circumstantial evidence. See Smith v. Xerox Corp., -- F.3d -- , 2010 WL 1052837 (5th Cir., March 24, 2010) (some footnotes and some footnote material omitted):

Direct or circumstantial evidence The Desert Palace Court held that, in addition to the language of Section 2000e-2(m), a heightened showing is not required by direct evidence because the Court was persuaded by Title VII's silence with respect to the type of evidence required. [FN37. Desert Palace, 539 U.S. at 98-99.] The Court noted that Congress has specifically provided for a heightened standard of proof in other statutes and clearly knows how to require such a showing. [FN38. See id. at 99....] The Court also noted that the long-established rule in civil litigation requires a plaintiff "to prove his case 'by a preponderance of the evidence' ... using 'direct or circumstantial evidence.' " [FN39. Id. ...).] Furthermore, the Court noted that the reason for treating circumstantial and direct evidence the same is deeply rooted in the notion that circumstantial evidence may often be more persuasive. [FN40. Id. at 99-100.... [S]ee also 1A J. WIGMORE, WIGMORE ON EVIDENCE § 26, at 961 (Tillers rev.1983) ("that circumstantial evidence may be as persuasive and as compelling as testimonial [or direct] evidence, and sometimes more so, is now generally accepted").] Moreover, even in criminal cases, where a conviction requires proof beyond a reasonable doubt, circumstantial evidence is sufficient to support a conviction. [FN41. Desert Palace, 539 U.S. at 100.] Finally, the Court observed that there was no other circumstance evident where a litigant is restricted to the presentation of direct evidence "absent some affirmative directive in a statute." [FN42. Id.] All of these considerations apply with equal force to litigants in Title VII retaliation cases, and we conclude from these factors and the text of Title VII that the kind of proof necessary for either discrimination or retaliation claims should be the same. The specific text of the Title VII retaliation provision, Section 2000e-3(a), prohibits an employer from discriminating "because" the employee has, inter alia, made a charge against the employer. [FN43] The statute provides no indication of the type of evidentiary showing necessary to prove the retaliation claim. Because the text of Section 2000e-3(a) neither requires nor prohibits a specific evidentiary showing, construing it to include the mixed-motive framework to be shown by circumstantial evidence does no violence to the statute. [FN44] Title VII does not affirmatively require direct evidence from a plaintiff, whether in a discrimination or retaliation context, and we can see no basis for requiring a heightened evidentiary showing in order to obtain a motivating factor jury instruction predicated only on the theory of liability alleged in the complaint (discrimination versus retaliation). The view that no special evidentiary showing is required absent a contrary statutory command is consistent with the view of at least four members of the Supreme Court in Gross, who, based on the analysis of Desert Palace, answered the question that the majority did not. [FN45] We therefore hold that to the extent we have previously required direct evidence of retaliation in order to obtain a mixed-motive jury instruction in a Title VII case, our decisions have been necessarily overruled by Desert Palace. [FN46] Smith therefore was not required to present direct evidence of retaliation in order to receive a mixed-motive jury instruction. [FN47]

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

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