Using important words precisely
February 1999

    In order for two parties to understand one another, their words must have precise meanings and be used properly by both sides. While this sounds like a truism, the fact is that in areas other than the sciences, it is not always upheld. Everyday speech is full of imprecision, even though we all know we should do better. The JFK literature also contains much careless language, which weakens or destroys the validity of many of the arguments being advanced. Given the lack of formal training of many assassination writers, such imprecision might be expected. Nevertheless, it remains depressing to behold.
    It may thus come as a surprise to learn that the law, which should be a bastion of clear thought and expression, is actually full of ambiguities, even on its most important subjects. I suspect that this reflects the law’s humble origins with the English commonfolk. It also offers the system a degree of flexibility that is often useful.
    Imprecise expression is unacceptable for an educated person. It also hinders our attempts to understand the JFK assassination, for which we need to apply the principles of clear thinking and proper reasoning. Each of us must strive to remove all ambiguity from our reasoning, our speech, and our writing. The first step is to learn to recognize ambiguity wherever it occurs. The following paragraphs point out two of the most problematic words relevant to law and the assassination, fact and prove.
    We begin with fact. If you casually ask your friends what fact means, you will invariably get responses like "something known to be true" or "something undisputed." Your friends are properly reflecting the widespread view of fact as being something known with certainty. If you look up fact in a legal dictionary, you get the same impression. Definitions of fact from Black’s Law Dictionary include "An actual occurrence," "An actual and absolute reality, as distinguished from mere supposition or opinion," and "A truth, as distinguished from fiction or error."
    Would that it were really so simple. Common speech and the law use fact in a second way: something that may be true. My Webster’s New World Dictionary (Second College Edition, 1984) illustrates the point. It lists these two meanings of fact, among others: "A thing that has actually happened or is really true" [fact as distinct from fancy]; and "Something said to have occurred or supposed to be true" [to check the accuracy of one’s facts]. Do you see the problem? These two definitions of fact are so different from each other that they transmit entirely separate messages. If I say "Let’s examine the facts of the JFK case" without explaining further, who can say whether I mean only conclusive information or whether I am including information of which I am still uncertain? How can anyone discuss something rationally under ill-defined conditions like this? It is impossible.
    But it gets worse. Imprecision in ordinary speech may be forgiven occasionally, but imprecision in the law may never be accepted. Yet the law also uses fact in this second way, without formalizing it in a definition. For example, Black’s Law Dictionary includes these phrases in its discussion of evidence: "…the tribunal may be lawfully persuaded of the truth or falsity of a fact in issue," "…to prove the existence or nonexistence of a fact," and "that which demonstrates…the truth of the very fact or point in issue, either on the one side or on the other." Thus in law, a fact may be something known to be true or something alleged to be true.
    I cannot see how fact can possess contradictory definitions like these without obfuscating its meaning in any discussion where it is not defined explicitly up front. One need look no further than the JFK assassination literature to see the truth of this statement. One writer’s "facts" are not another’s. "True facts" are distinguished from "facts." On and on it goes.
    The situation for prove is even worse. The man on the street will say that prove means to establish something conclusively, that is, to remove all doubt about it. To one’s great surprise, that is only the second definition in Webster. The first definition, presumably referring to the most common use of the word, is "to test," or "to try out." This is the sense of the word in the common expression "The proof of the pudding is in the eating." The word probe also carries this connotation of testing rather than verifying. Students of German know that probieren means to test rather than to validate.
    The law also uses prove and proof in not just two senses, but several. Black says of prove: "To establish or make certain," and "To establish a fact or hypothesis as true by satisfactory and sufficient evidence." That sounds fine (like the first definition of fact) until you look up proof and find yourself in quicksand: "The effect of evidence," "The establishment of a fact by evidence," "Any fact or circumstance which leads the mind to the affirmative or negative of any proposition," "The conviction or persuasion of the mind of a judge or jury, by the exhibition of evidence, of the reality of a fact alleged," and "The establishment by evidence of a requisite degree of belief concerning a fact in the mind of a trier of fact or the court." (How do you like this legalese?) Note that this last definition degrades proof not only to "belief in the mind," but further to "a requisite degree of belief." In other words, proof in the law’s eyes is far from the man-in-the-street’s conclusive sense of it. It is reduced to some level of belief. We will see in a separate essay that the law actually recognizes five such levels, or "standards," of proof, and explicitly excludes the conclusive level from consideration. Thus the man-in-the-street’s view of proof and the law’s view are mutually exclusive. What’s in a word then? Plenty, where fact and proof are concerned.
    So what can we do to resolve these ambiguities of important words? Most people just punt. They choose to ignore these problems, but in so doing, they perpetuate a system of misunderstanding and miscommunication. We must do better.
    For the purposes of the assassination, I propose that we restrict fact to its common meaning of something known conclusively. For fact used in the sense of something not yet established, I propose that we substitute a neutral word such as data (singular datum) or evidence, or possibly information. Thus we would say "Check your data" rather than "Check your facts." We would say "Now we will examine the evidence on the Kennedy assassination" instead of "Now we will examine the facts of the Kennedy assassination."
    That’s the easy part. Proof is harder to deal with. Again, I suggest that we reserve proof for its common (and strongest) meaning of establishing conclusively. For the four weaker uses of proof—the only ones that the law uses—I propose that we tell the truth and speak of probabilities. In actuality, the law rarely or never proves anything—it merely establishes as high a probability as it can with available evidence, and convicts the accused if the probability exceeds some preset threshold. We will consider these probabilities in detail in another essay. For now, we need only note that in civil cases the defendant is convicted when probabilities of guilt reach 51% or greater; in criminal cases the threshold for conviction is raised to 90–95%. To state it most bluntly, conviction in a court of law is an educated guess. Defendants are sent to the electric chair on guesses rather than on real proof. Alleged criminals can be executed wrongfully because their guilt did not have to be established beyond doubt, just beyond a certain probability. The law obscures the uncertainties of its verdicts by fancy words and long black robes.
    This is less a critique of our legal system than a straight description of it. There are strong practical justifications for our American legal system. For use in the Kennedy assassination, we need only understand the system, not justify it, because we will investigate the Kennedy assassination rationally and critically rather than legally. When we understand the legal system, we can appreciate how our approach differs from it.
    As a final note, keep in mind that legal principles have formed the invisible backdrop for all the JFK investigations to date. Lawyers organized them, ran them, and wrote the reports. Lawyers asked all the questions and generated all the theories. Rightly or wrongly, the precepts of the law were never far away.