On Addison Russell and What Constitutes Evidence

Recently, Cubs shortstop Addison Russell was placed on administrative leave in response to a blog post by his ex-wife, Melisa Reidy-Russell, detailing abuse she allegedly suffered at his hands. She’s since added additional context to her blog post with this interview today. In between, Ken Rosenthal reported the following:

Major League Baseball did not place Cubs shortstop Addison Russell on paid administrative leave solely because of a blog post written by his former wife, Melisa Reidy.

The post alone would not have been enough for baseball to force Russell off the field under its joint domestic violence policy with the players’ union. The league had additional credible information, according to sources familiar with its investigation.

The league’s investigation includes interviews with Reidy and numerous other witnesses, and with officials gathering additional information since Russell went on leave, sources said.

While Rosenthal’s reporting is consistently excellent, it appears as though his statement here is slightly inaccurate, or at least incomplete. The plain language of MLB’s Joint Domestic Violence, Sexual Assault and Child Abuse Policy appended to the Collective Bargaining Agreement states that an accusation, without more, is sufficient to place a player on administrative leave.

Under the Basic Agreement, the Commissioner may immediately place a Player accused of a Covered Act on Administrative Leave, effective as early as the date of the Notification, and may keep the Player on Administrative Leave for up to seven (7) days, including the date of Notification, subject to the Player’s right to challenge that decision set forth below.

What seems likely is that Rosenthal is referring to MLB’s recent extension of Russell’s leave past 30 days, which, theoretically, does require additional evidence. Again, from the Joint Policy:

The Commissioner’s Office may ask the Players Association to consent to a one-time extension of the initial seven-day Administrative Leave period for an additional seven (7) days (for a total of fourteen (14) days), which consent shall not be unreasonably withheld. Alternatively, the Commissioner’s Office may defer placing the Player on Administrative Leave until the Player is either charged with a crime by law enforcement, or the Commissioner’s Office receives credible information corroborating the allegations.

This seems to be the confusion: for longer than seven days, additional evidence is required. For less than seven days, it’s not. It’s a minor point, perhaps. In the grand scheme of things, it’s not very significant.

Why I’m mentioning it here, however, is because — due to a very loud conversation occurring in our country at the moment, one that is riddled with all manner of misinformation and self-interest — there’s probably some merit to reviewing, under somewhat more sober conditions, how the law treats personal accounts like the one provided by Reidy-Russell on her blog.

One frequent understanding of such personal accounts is characterized as follows.

As hard as it might be we still have to give him the benefit of the doubt and find answers before handing down our judgement. I have yet to hear any comments from Addison Russell about what happened. Right now we have EXTREME allegations with no evidence that I am aware of.

— Dylan Drew (@OGCubsFan17) September 21, 2018

First, allow me to note that I’m not picking on Dylan here. There are a number of comments across the Twitterverse which make roughly the same point, urging not to presume guilt. That said, he makes a common error about the nature of what does and doesn’t constitute evidence.

To understand why, let’s look at the Federal Rules of Evidence, which govern in federal courts what is admissible evidence and what isn’t. Every state has its own version of the Rules of Evidence, but with some exceptions, they generally track with the Federal Rules. Let’s start with what relevant evidence actually is – and for that, we look at Rule 401.

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

This definition clearly includes accounts Melisa’s blog post: it’s a statement that has a tendency to make a fact more probable (that of Addison Russell’s alleged abuse), and the fact is of consequence, because it goes to the ultimate merits of the matter. And witness statements of people with personal knowledge are expressly contemplated by all of Article VI, most notably Rule 602 (emphasis mine):

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony.

That’s how statements like Melisa’s represent evidence — they are testimony about a witness’s own personal knowledge.

In response to that, you may be wondering why the statement doesn’t count as hearsay. “Hearsay” is a word that gets thrown around a lot, usually incorrectly. From Rule 801:

(c) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

In other words, a statement is inadmissible “hearsay” if it is an out-of-court statement offered to prove the truth of the matter asserted. But there are a lot of exceptions to the hearsay doctrine; as just one example, recorded recollections are excluded from the hearsay rule under Rule 803(5). In other words, there’s pretty much no doubt that Melisa’s blog post would be admissible evidence in some capacity. And generally, the rules of evidence are far more relaxed in administrative and arbitration proceedings (like MLB discipline), and often disregarded entirely; what that means is that everything relevant is considered evidence, and that includes Melisa’s blog post.

What this doesn’t address, of course, is the weight of the such accounts as evidence — which is perhaps more to the point of concerns like those expressed by people like Dylan above. Some scientific studies, for example, cast doubt on the reliability of eyewitness accounts. On the other hand, the evidence is legion that false rape or abuse allegations are incredibly uncommon, in only about 2-10% of cases. And evidence also shows that memories of traumatic events, like assault or abuse, actually are less likely to become distorted over time. As Harvard University psychology Professor Jim Hopper explains,

But memories of highly stressful and traumatic experiences, at least their most central details, don’t tend to fade over time. And while people may have the superficial abstract stories they tell themselves and others about their worst traumas, that’s not because the worst details have been lost. It’s often because they don’t want to remember them, and don’t (yet) feel safe to remember them.

In other words, memories of trauma, while not perfect, tend to be the most reliable when it comes to the crux of the event in question, which is one reason why they are still considered such powerful evidence. And while forensic evidence obviously has merits, it’s important to note that it isn’t perfect. Some data suggest that the error rate on DNA evidence, for instance, could be as high as 1 in 100.

The point here isn’t that memories are the best evidence, or better than DNA. Instead, the point is that the CSI/forensic television world of lawyering and policing, where forensic evidence is regarded as unassailable and memories are useless, obscures the reality of the situation. Both witness accounts and scientific forensic evidence are valuable. Both should be considered as evidence, with their context and flaws taken into account. And an eyewitness account is not less useful as evidence merely because it is an eyewitness account. In a case like Russell’s, MLB isn’t required to presume Russell innocent. And even if it were, MLB doesn’t have to prove its case beyond a reasonable doubt — it merely has to establish that it is more likely than not that Russell committed a violation of the domestic-violence policy. In that context, an eyewitness account from an alleged victim carries considerable weight.