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William C. Altreuter
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Wednesday, June 16, 2004

I'm not sure where to put this, so I'll cross-post. The US Anti-Doping Agency has decided to introduce a diminished standard of proof for athletes accused of doping offenses. The standard used heretofore (I guess "heretofore" makes this an "Outside Counsel" post) was proof beyond a reasonable doubt-- the standard used in criminal matters. The new standard is "comfortable satisfaction"-- rather novel, I'd say. In civil matters the burden of proof is a fair preponderance of the credible evidence, which is easy to get your mind around. New York's Pattern Jury Instructions defines it as follows: "The credible evidence means the testimony or exhibits that you find to be worthy to be believed. A preponderence of the evidence means the greater part of such evidence.... The phrase refers to the quality of the evidence, that is, its convincing quality.... The law requires that in order... to prevail... the evidence that supports [a] claim must appeal... as more nearly representing what took place than the evidence opposed...."

I guess I don't have a problem with backing away from the criminal standard of proof: what we are talking about here is closer to a civil action than a criminal action: nobody's liberty is at risk, merely the privilege of being permitted to compete. I have a problem with doping rules in general-- actually, I have several problems-- but that's not what is at issue here. Right now I have a problem with changing the burden of proof in the middle of the process, which impresses me as fundamentally unfair; and I have a problem with the new standard. What the hell is "comfortable satisfaction"? Is it just that it sounds so smug? Rules are rules, but this is a rule with no historic definition that I am aware of, and who knows what the parameters are? I'm all for our sport cleaning up its image, but I'm more for fairness and transparency. "Comfortable satisfaction" as a standard of proof doesn't do that for me.

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