By Dr. Ken Broda-Bahm:
We have finally, some would say 'mercifully,' arrived at the end of the 2016 presidential campaign. But not before one last surprise: Just eleven days before election day, and as millions of Americans were already voting early, FBI Director James Comey notified Congress of the discovery of additional emails that "appear to be pertinent" to the agency's earlier investigation of Hillary Clinton's personal server and private email use while Secretary of State. Overnight, what had been a relatively comfortable Clinton lead turned into a tighter race. The main reason for the polling shift, and the key ingredient in Comey's notice comes down to one word: uncertainty. At the time he wrote the letter, the FBI did not yet have a warrant to actually review the emails, and it was unknown if these emails were new or if they had been already considered in the prior investigation. The uncertainty stretched out for nine days before Director Comey basically said, "never mind" to Congress. But for the Clinton campaign, the resurrection of the issue and the way it was raised created questions and speculation during that nine-day span that could not be easily answered.
Of course, one problem with all of this is the appearance of a politicized FBI during the closing days of an election. But the other problem is one that might be more familiar to civil litigators: the problem of dealing with appeals that are based on what we don't know rather than on what we do know. When evidence is, in effect, locked in a black box, the fact finders are left to speculate on what that evidence might show if they were able to see it. The rules of evidence strongly weigh in on the side that an absence of evidence is not evidence. But with juries and judges being human, speculation on what is in the box can still be influential, and attorneys can and often do try to benefit from that speculation. When an attorney makes a valient effort to admit a document while knowing that the judge is almost certainly going to keep it out, it is at least partly to plant a seed in the jury box to get them thinking, "I don't know what that says...but I'll bet its bad for the other side." In this post, I will consider some ways to address that speculation when it works against you, and offer some advice on what to do when you're in Clinton's shoes and the problem is absent evidence rather than present evidence.