What is fraud from a legal perspective

 

Lately, the news has been full of references to "fraud." As a retired trial attorney, from time to time, I had to deal with clients who had been defrauded. I can say from experience that claiming fraudulent behavior or representations is easy and emotionally charged but actually proving fraud in court is one of the most difficult claims to prove in both civil and criminal litigation. 

Since my main trial experience was in Arizona, I will use Arizona law as an example. Here is one statement of the elements of a fraud claim that must be proved in court. 

While the criteria required to establish fraud vary in state and federal laws, one must generally be able to prove that an important fact was misrepresented by a person who knew the information was false to a victim who suffered a loss or injury as a result of reasonable reliance on the misrepresented fact. The misrepresented fact must be substantial and must have played a critical role in the victim’s decision. In order to be considered fraud, the misrepresented information must be a fact, not an opinion. See Arizona Fraud Laws. 

 In most states, the elements of a fraud claim have to be proven individually in order for the incident to be considered a fraud. With regard to elections, here is a link to a Federal Election Fraud Fact Sheet prepared by the United States Attorneys Office of the District of New Hampshire. If you have any questions about the Federal Law of Fraud, I suggest you carefully read the list of Conduct Actionable as Federal Election Fraud, Intimidation, or Suppression listed on the Fact Sheet. 

Once again it is easy to claim fraud but it is another thing to prove fraud in court. Why is this the case? The main issue is obtaining facts that support the claim. Now you would think that researching the total number of election fraud cases that ended in a conviction would be fairly easy. Court records are public and easily reviewed. In fact, there are huge searchable databases such as West Law that provide attorneys with almost every case of record in the history of the United States. 

If you spend a few minutes looking online, you will find real credible sources that address the issue of voter fraud in the United States, not unsupported allegations by politically motivated individuals. For example, here is a link to an article entitled, "Debunking the Voter Fraud Myth" from the Brennan Center for Justice at the New York University of Law. Here is one quote from the article:

The Brennan Center’s seminal report on this issue, The Truth About Voter Fraud, found that most reported incidents of voter fraud are actually traceable to other sources, such as clerical errors or bad data matching practices. The report reviewed elections that had been meticulously studied for voter fraud, and found incident rates between 0.0003 percent and 0.0025 percent. Given this tiny incident rate for voter impersonation fraud, it is more likely, the report noted, that an American“will be struck by lightning than that he will impersonate another voter at the polls.”

The rest of the article cites 18 additional studies about the incidence of voter fraud. Of course, if you want to listen to politically motivated individuals rant about voter fraud all the studies and court decisions in the country will not convince you that there is really no significant issue or problem. 

Again, it is easy to claim fraud, it is very, very, difficult to find cases of voter fraud in the United States.  

A Plague of Ignorance

The Plague of Florence as Described by Boccaccio, an etching (ca. early 19th century) by Luigi Sabatelli of a plague-struck Florence in 1348, as described by Petrarch's friend Giovanni Boccaccio (pictured with a book bearing his initials) 

 “Nothing in the world is more dangerous than sincere ignorance and conscientious stupidity.”

― Martin Luther King Jr.

“You are not entitled to your opinion. You are entitled to your informed opinion. No one is entitled to be ignorant.”

― Harlan Ellison

We live in a world flooded with information and yet many in our contemporary society choose to be ignorant. I spent about 20 years of my life in formal education. After graduating from law school, I spent the next 39 years as a trial attorney. I went to court arguing cases for my clients thousands of times. I appeared in every level of our court system from Justice Courts (Small Claims Courts) all the way to the 9th Circuit Court of Appeals. For the months I have been watching two dangerous and overwhelming plagues attack the people of the United States. In both of these plagues a substantial percentage of the people of our country deny the existence of the plagues. One of those plagues, to the date of this blog post, had cost the lives of well over 300,000 people in our country, more than died in every war since the start of the Korean War combined. See "The coronavirus has now killed more Americans than every war since the start of the Korean War—combined."

The other plague is really more serious as it may result in the loss of our freedom and the return to an unthinkable division of our country not unlike the U.S. Civil War. At the very least, this plague will result in the destruction of the Republican Party. 

The first plague is, of course, the COVID-19. The second plague is harder to detect but more dangerous. It is a plague of ignorance. I am guessing that within a few months, vaccines will become available that will eventually slow down the COVID-19 pandemic. So far, about 50 lawsuits have been filed in various states and in various courts across the country challenging the results of the 2020 Presidential Election. So far, every one of those cases has been dropped, dismissed, or in a few cases is still on appeal. More cases are being filed even over the last few days before this post was written. See a summary at "Wikipedia: Post-election lawsuits related to the 2020 United States presidential election."

Many of the judges who have decided these cases are appointees of the current administration. From my standpoint as a trial attorney, the filing of so many baseless lawsuits is a serious concern. The attorneys involved in those lawsuits need to be sanctioned by their respective Bar Associations. What is more disturbing however is the fact that apparently, a large percentage of people in the United States ignorantly and willfully believe that the decisions in all those cases are somehow wrong and there is still evidence of election fraud out there just waiting to be proven. 

Let me give you an allegorical example. 

Let's suppose that I bought a car that I had now owned for four years. During those four years, my car had run erratically and was totally unreliable. I decided, after careful consideration, to buy another make of automobile and junk the older one. When I bought the new car, suddenly the manufacturer of the old car appeared at my doorstep and claimed that my decision to buy a new car was fraudulently induced by the manufacturers of the newer car I just bought. In fact, not only did they claim fraud, but they also went to court to prevent me from driving or owning the newer car. Now, I had to spend money to get an attorney to represent me, but when I showed up in court, the attorneys for the older car's manufacturer simply claimed that I had no right to dump the old car because of my purchase of the new car was faulty. However, they could never explain how my purchase was faulty and the judge in the case dismissed their claim. Despite this, the attorney for the manufacturer of the older car continued to file lawsuit after lawsuit and not only that they convinced my neighbors and even some of my friends to threaten me with physical harm. In all this, they could never really tell me what was wrong with my purchase of the newer car. Not once. 

Now, the attorneys making the claims in court are not ignorant. They are willfully and knowledgeably making false claims. However, the people who believe them are woefully ignorant. 

The United States can only operate as a country under the rule of law, that is the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws. In order for those questioning the validity of the current election for the president of the United States to follow the rule of law, they must present a case supporting their claims for fraud and misconduct. It is not enough to make claims without evidence. Over 50 judges of both political parties have ruled or are in the process of ruling that the claims made were not justiciable. Supporting those claims without evidence is ignorant and inexcusable. If people in this country continue to operate in ignorance and conscientious stupidity, we are going to have a rough time which may end up with extremely serious consequences.