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Friday, October 30, 2009

How Many Scintillas Does it Take to Win?


One barrel of flour contains zero scintillas of evidence.

Time is measured in minutes. Sugar, in spoonfuls. Rain, in inches. 

Evidence, of course, is denominated in scintillas. 

Whenever a lawyer or judge wants to emphasize the lack of evidence in favor of some party or proposition, we hear that familiar refrain, "There is not one scintilla of evidence."

How did the scintilla become the recognized unit of measurement for evidence? We do not know precisely, but in this post, I present some of my own research findings.

An early prominent use of the scintilla can be found in the famous case of Byrne v. Boadle, 159 Eng. Rep. 299 (Exch. 1863). That case introduced the doctine of res ipsa loquitor to help out the unfortunate Mr. Byrne, who, struck by a barrel of flour that fell out of a building, had not a "scintilla of evidence" to prove that the barrel's fall was the result of any negligent conduct.

But the earliest use of "scintilla" that I could find was the dissent of a Judge Grimke of the Constitutional Court of Appeals of South Carolina in Frost v. Brown, a land-title case from 1798:

It is not pretended that any deed is even in existence; nor a copy of it, nor any record of it to be found; but it is alleged to have been lost, when Mr. Allston's house was consumed by fire. Is there any proof that it ever did exist, or that the landgrave ever executed it, or that he ever in his life-time, directly or indirectly, acknowledged that he had executed such a deed, or that it ever came into Mr. Allston's possession? ... Not one scintilla of evidence has been offered, to prove or substantiate any one of these important facts ...

2 Bay 133 (S.C.Const. 1798).

Despite the frequent usage of "scintilla" in modern times to characterize quantities of evidence, the word is rarely used in the plural. Only 22 cases in the allfeds and allstates databases on Westlaw contained a reference to "scintillas." And only one of those, Rosenthal v. Mueller, 720 A.2d 1264 (Md. App. 1998), quantified a number of scintillas other than one or zero. In Rosenthal, that number was two. You will probably not be surprised to hear that in Rosenthal two scintillas turned out not to be enough scintillas to win. 

How many more scintillas would have been needed to get to a jury? The court does not say.

Now, there is another unit of measurement for evidence, and that is, of course, the mountain. Usually just one mountain of evidence is enough to win a case. 

There are hundreds of reported cases quantifying evidence in mountain units. Yet, disappointingly, my research uncovered no conversion formula. How many scintillas are there in a mountain? The question begs scholarly development. But as of right now, we do not have even one iota of a clue. 

Posted by Eric E. Johnson on October 30, 2009 at 03:53 PM | Permalink


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When I was clerking I tried on several occasions to get the Judge for whom I clerked to let me make references to a "scintillomitor" in a decision, something like, "We have applied our most delicate scintillomitor to this case and have determined that plaintiffs has just barely failed to meet his burden of production." He never would agree.

Posted by: Matt | Oct 30, 2009 4:10:44 PM

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