Alternative facts (law)

Alternative facts is a term in law to describe inconsistent sets of facts put forth by the same party in a court given that there is plausible evidence to support both alternatives. The term is also used to describe competing facts for the two sides of the case.

One-party inconsistent facts

Normally, a party in a court case may not raise inconsistent facts. However, the inconsistent facts can be presented in the alternative. 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.

In the courts of England and Wales, under the Civil Procedure Rules (CPR), a party is required to sign a statement of truth to verify facts in the case. Part 22 of the CPR contains the rules regarding the statement of truth. In 2001 case of Kelly v Chief Constable of South Yorkshire Police, the claimant was allowed to amend her pleading at the end of the evidence phase to have an alternative pleading based on the evidence from the defendant side. In 2002 case of Clarke v Marlborough Fine Art (London) Limited, the court would allow pleading alternative facts. These were followed by the 2003 case of Binks v Securicor Omega Express Ltd, where the claimant submitted an amendment to the pleading at the end of the trial with another version of pleading that was contradictory to the original pleading. The trial court rejected the submission citing that Part 22 of the CPR would not allow conflicting versions of the complaint. However, the Court of Appeal of England and Wales disagreed and found that the purpose of Part 22 of the CPR is not to exclude the possibility of pleading inconsistent facts in the alternative. The series of these rulings showed that the requirement for a statement of truth does not prevent pleading alternative facts. In the past, there used to have rules for statements of case which expressly allow alternative facts. A guideline for drafting statements of case written in 2016 suggested 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.

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." Some courts cite this rule to allow pleading alternative facts which are contradictory or inconsistent facts on alternative grounds, such as a ruling by United States Court of Appeals for the Ninth Circuit in 2012 case of Lacey v. Maricopa Cnty.. However, there are limitations in some courts that pleading alternative facts is only allowed when the party is in doubt about the facts. 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. In Virginia, a party may plead alternative facts against alternative parties for the same event.

In criminal law, a defendant 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.

Consequences of inconsistency

Admissions of guilt

In some jurisdictions, there are regulations related to the consequences of inconsistency in term of admissions of guilt. In New Jersey, the inconsistency of alternative facts in pleading may not be used as an admission against that party.

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.

Jury verdicts

In a criminal case, when a prosecutor puts forth alternative facts which are inconsistent with 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 agree that the defendant is guilty.

Two-party competing facts

Summary judgment motions

In civil litigations in the United States, there are many stages of verification of the cases from motion to dismiss, motion for summary judgment, to trial. The verification standard at motion to dismiss stage is for the parties to plead the facts. At this stage, the courts generally accept all facts as true because the courts do not need to have factual certainty yet. When the case moves to the motion for summary judgement, the court will gather facts through a discovery process. The plaintiff submits alleged facts. The defendant may contradict those facts by submitting alternative facts through affidavit, documentary evidence, or the plaintiff’s own responses to discovery. If the plaintiff cannot rebut those alternative facts, the court may take them as true for the purpose of this stage and the competing sets of facts will be used in a trial. If there are no alternative facts submitted by the defendant, the case will be decided at the motion for summary judgment stage.

Cross-examinations

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. 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.

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. The alternative facts can be used by the defense side as well. A defendant may call witnesses to assert alternative facts which are in contradictory to prosecution case. Since the burden is on the prosecution side to prove beyond a reasonable doubt, the defense side may not need to prove those facts. It is the responsibility of prosecutors to both disprove the alternative facts through cross-examinations and to prove guilt.

See also

• Alternative pleading

References

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