Bill: An Attorney’s Insights About the Burden of Proof and Weighing Evidence

As a trial lawyer, Bill has a unique perspective about using the concept of the burden of proof when doing religious research. Drawing on their years of legal experience, Elder Hafen and Bill discuss how to weigh evidence and listen to both sides as a juror might in a court case. Bill also shares how his battle with cancer expanded the strength of revelatory evidence in his life.

Further Reading in Faith Is Not Blind:

“Both common sense and our legal system tell us that someone accused of wrongdoing is presumed innocent until proven guilty. And whoever makes the accusation carries the burden of proof to confirm the guilt. Raising questions or doubts alone would never, legally or logically, carry that burden.”

(Faith Is Not Blind, Chapter 4, “Some Internet Soft Spots,” pages 37-38)

FULL TRANSCRIPT:

Faith Is Not Blind: Welcome to the Faith is not Blind Podcast. I’m Bruce Hafen. Today we’re in Denver talking to Bill Barnett. Thanks for being with us today.

Bill: I’m glad to be here.

Faith Is Not Blind: Tell us a little bit about yourself. Where did you grow up?

Bill: I was born in Texas, but my father was a national park ranger. So by the time I got to junior high school I moved from Texas and I lived in Bryce Canyon National Park, Mount Rainier National Park, and  Yellowstone National Park.

Faith Is Not Blind: When did you join the church?

Bill:  When I was a freshman in college, so that was in 1967.

Faith Is Not Blind:  Had your parents been religious? Did you have a religious background?

Bill: My parents were not religious at all. They weren’t atheistic, but we didn’t go to church Because we lived in the national parks, normally there were no schools close by and so I went away to school at a school called Wasatch Academy in Mount Pleasant Utah.

Faith Is Not Blind: How did you end up there?

Bill: Because at that time we lived in Bryce Canyon. I had started off at Shawnigan Lake Boys School in Canada, which is on Vancouver Island, because my mother’s Canadian. But then when I moved to Bryce Canyon, Wasatch Academy was much closer and it had a reputation for having Park Service kids. 

Faith Is Not Blind: Is that how you found the Church?

Bill: Yes it was. I dated a girl and she handed me a copy of A Marvelous Work and A Wonder. So that’s where it all started. Once I graduated from Wasatch Academy, I went to Southern Methodist University in Dallas Texas and that’s where I was baptized. I joined the church when I was a freshman at SMU. 

Faith Is Not Blind: I’m interested in what formed your testimony. What formed it? What informed it? What was it like in the early stages and then what did it become like as time went on?

Bill: I think early on it was driven more by the fact that I had a girlfriend who was a member of the Church and wouldn’t have anything to do with me unless I joined the Church. That kind of started it.  I read A Marvelous Work and a Wonder and then I read the Book of Mormon and I joined the Church, but I didn’t really know a lot about it. Eventually I was no longer with that young girl, but I didn’t leave the Church. I kind of stayed in the Church and I’m amazed that I did back in those early days. Because at SMU–this was in 1967 and 68 before the internet–they would have books of the school that said all the courses involved in the school and what the school was and that sort of thing. At SMU there was a student body population back then of maybe eight to ten thousand. At the very back of that book iit had the different denominations of people that were in various churches. So it had Methodists 7,000, Episcopalians a thousand, Baptists 800, and then it came down to Mormons–one. 

Faith Is Not Blind: That was you.

Bill: That was me. I had joined a fraternity back then and as a result of being in a fraternity I wanted to go have fun with my fraternity brothers. I basically wanted to be able to do whatever I want without consequences–the doctrine of Nehor. I had joined the Church and I don’t know how much I knew that the Church was true back then. It felt good, but I don’t know how strong my testimony was. But it felt good enough that I couldn’t just go drinking and carousing and stuff with my fraternity brothers unless I felt I could prove the Church was wrong. So I tried reading every anti-Mormon book I could get my hands on that existed back in the 1960’s. So this would be Fawn Brodie’s No Man Knows My History and Mormonism Unveiled, The Godmakers. But for whatever reason, when I would read their books and I would come to a footnote–I love libraries–I’d wander through the stacks to see where they were coming up with this stuff. And I’d look up the quote and I go, “I don’t know how they could say this in the book. What they’re quoting doesn’t say what they’re saying that it says. And so I did that for several years. And while I definitely found that I could not disprove the church by doing that, but it didn’t prove the church either. 

Faith Is Not Blind: So why did it not disprove the church if you read that much stuff? 

Bill: I mean, I’ve read it all. I’ve continued reading that stuff into the modern day. I listened to John Dehlin, I’ve read Martin Snuffer, I read the CES letter and I have examined all of their stuff and it’s weak. I am a lawyer by trade but back and I didn’t know it. b\But I was protected enough that I shifted the burden of proof to them, not to the church having to prove it was true. But they had to prove it was not true. And their arguments were just weak. They were not supported logically. They were not supported factually. They had more of an agenda than an honest perception of looking for the truth.

Faith Is Not Blind: That’s a very interesting point and it’s an unusual one, Bill, because you’re a lawyer. The term “burden of proof” is familiar to you and it is to me. What does it mean and how do you apply it to this situation? 

Bill: Well, in my situation I did a lot of criminal defense work and in criminal defense work I’d have to stand in front of a jury and my job was to convince them that the prosecution had not proven their case against my client beyond a reasonable doubt. AndI used to always explain to juries that there were different amounts of burden of proof. If you have an area like this and this is non-belief over here and total belief over here, that there could be a belief in the middle which is a “preponderance of the evidence”–I believe it 51% to 49%.

Faith Is Not Blind: Meaning that it’s 51% more likely that it’s this way or that way.

Bill:  And then the next level of burden of proof would be “clear and convincing evidence,” which I would always tell juries is about 75% or so. And the DA’s would always object, but the judges always let me do it anyway. 

Faith Is Not Blind: I just want to be sure that people grasp this because I think it’s helpful. Could we say with 75%–if the standard in a legal case is clear and convincing evidence–does that mean it is the likelihood that it’s true is 75%? The probability? Is that a simple way to say that?

Bill: The probability is high at that point. So you’ve gone from just that it’s likely to it’s very probable. And then in criminal cases the burden is “beyond a reasonable doubt” which means that you’ve got to be very very convinced.

Faith Is Not Blind: So beyond 75%?

Bill: I would tell juries that it’s 90-95%. You’ve got to be pretty doggone sure before we can convict someone. I feel that in my situation I was very lucky. When I was younger I didn’t know that’s what I was doing, but I would read the anti-LDS or anti-Mormon literature and they weren’t even coming close to approaching burdens of proof. 

Faith Is Not Blind: If I understood you right, when said you started off you were trying to disprove the Church. 

Bill: My motive was to disprove the Church and it was for purely hedonistic reasons. I wanted to go be a fraternity kid that could drink, carouse, have illicit sexual relations–whatever it was back in those days of the 60’s. I wanted to be able to do that but my conscience wouldn’t let me do that unless I knew that the Church was not true. And so I figured I would read the anti stuff to prove the Church is not true. I would never recommend it to anybody–but for whatever reason I was absolutely driven to study. I’ve been driven my whole life to the study of epistemology–which is a study of knowledge–ontology, quantum physics, evolution–I just have an insatiable curiosity. And I had it back then. So I would read these books, but I’d go. “Man, that that statement is awfully one-sided.”  I mean even in criminal cases we have jury instructions where we tell the jury, “When you listen to this witness, does this witness have an axe to grind or does he have a connection to one side of the case or the other? Does he have something that he needs to prove? Why should you believe this witness?”  We do the same thing with experts. I had numerous trials where my expert argues against their expert and we have jury instructions to say, This is what you’ve got to go through to determine whether you believe this person.” You know, what is their recall of the facts, what is their connection to the case, what would make you believe them? I did not know I was doing it when I was younger. I knew I was doing it when I was older, but when I was younger that’s what I was doing. I was by instinct a very good juror. And so I would read from Brody’s No Man Knows My History– and that was probably the first anti-Mormon book I read back in the sixties–and everybody said how great a scholar she was. And  here I am a freshman and sophomore in college and I would read that and go, “This is not good scholarship.”

Faith Is Not Blind: Some of that is because you were reading the footnotes.

Bill: And you should do the same thing on the internet today. If you just read it and accept it as true you’re a dead duck. You have to literally have a sufficient curiosity to challenge it–to be able to get back to square one of philosophy. I look at all the anti stuff as–it’s like the branches and leaves of a tree. Okay, so their opinions are the leaves: “The Church isn’t true because the book of Abraham wasn’t written properly or the words don’t match up with the papyri.” That’s an opinion. If you’ve got that opinion, that’s fine, but you’d better back it up. So the next thing is, “What is the premise upon which that opinion is based?”  and you just keep backing up that premise till you get to the foundation. And when you get to the foundation it really becomes pretty simple and that is, “Did Joseph Smith see what he saw? Is the Book of Mormon true?” And when you get back to that foundation it makes the other stuff kind of diminish and go away. 

Faith Is Not Blind: Very interesting. From your experience you said when a jury is listening to a witness you try to tell them as a courtroom lawyer to consider what possible motives this person may have for interpreting the situation this way or that way. Can you apply that to people who are reading about the Church online? How are they supposed to know what somebody’s motive is? 

Bill:  I would suggest that they need to do. . . Well, there are only four ways you can learn things. There’s the analytical method or the rational method–this is just epistemology stuff. So analytical/rational–two plus two is four. You’re thinking in your own mind. It’s kind of like when in Doctrine and Covenants 9 when the Lord says to Oliver Cowdrey, “You took no thought.” You’ve got to think it out in your own mind. So that’s one way of learning. Typically Einstein would do thought experience. That’s what that is–analytical. The second way is epistemological or experience–what we’ve actually experienced. That’s the scientific method. You can do a test. You can try it. The third method is by learning and by authority. So if you’re my professor and I believe everything you say and then I find out that something you did is wrong my testimony is gone–it’s going to fall apart. And the fourth one is by Intuition or we would say “revelation” in the Church. Now those are the only four ways you can learn anything. There are no other ways. 

But when you get to the end of The Book of Mormon the Lord says, “When you read these things if you ask with a sincere heart and an open mind I will disclose it to you by the Holy Ghost.” Also when you’re baptized, what’s the first thing that happens after you’re baptized? You’re given the gift of the Holy Ghost. And I thought about that a long time. Why is that the case? And the reason is, in my mind, because that is our direct conduit with our Heavenly Father and and it’s the only of the four methods of learning– it’s the only one where we are totally completely and personally responsible. If you screw up analytical reasoning, maybe you just have a logical fallacy that messes up your thinking. If you do an experiment wrong that messes up your beliefs. If you listen to the wrong authority–if you listen to an anti-mormon and just take their word at face value–then your belief is built upon sand. The only one that is absolutely true–which is perhaps the hardest for people to understand and to feel–is the inspiration and Revelation. But we all feel uncomfortable with that because we go, “I feel this way, but is that me or am I just feeling this way?” 

And so until you get to a point where you learn to trust that, you can be pulled and drawn by these other three methods. So if you’re having a faith crisis in the Church, you need to understand that. Testimony is built on all four ways of learning. And I’ve spent my whole life engaged in all four ways of learning. But it was primarily the first three ways and not the revelatory way until I got older in my life.

Faith Is Not Blind: You said an interesting thing about the “revelatory way”and the Holy Ghost and the promise of Moroni in Moroni 10:4 and 5 which I hadn’t thought about in quite the way you put it. The reason that one is so significant is not just because it’s the Holy Ghost, but because he connects you to who?

Bill: It connects you straight to your Heavenly Father. And now you’re personally responsible for that. 

Faith Is Not Blind: It’s the sort of communications vehicle between you and God. And when that relationship is strong, that’s a source of knowledge 

Bill: It’s like Mark Twain said in Huckleberry Finn: “You can’t pray a lie.”  So the bottom line is that if you are true to that and your Heavenly Father,  you can’t go wrong.

Faith is Not Blind: So back to the question about motive. What would you say to somebody who is wanting to learn about the church and they are looking at material that’s online and they don’t know who it is from. You know, you can’t tell that. You’ve clicked on Google and you’ve got a list. You go read about it. And you don’t know whether it came from the Church or the Church’s worst enemy. You were saying earlier that unless you know the motives of the person who wrote it, you can’t really evaluate the strength of their testimony. How would you help somebody deal with the motive problem?

Bill: You’ve got you’ve got to stop long enough to ask yourself. “Why is this person writing this? Is this person really being honest or is this person trying to convince me?” If a person is really honest they don’t care whether you accept it or not. If they use adjectives–any adjectives which tilt things–you can start to get suspicious. And that goes both ways. You can get overzealous people that want somebody to believe. You can get somebody in the Church who is overzealous that twists it the other way. That’s wrong too. I know that with detectives (and I used to have a pretty good investigator that would use kind of a forensic analysis and people’s statements to try to determine whether they were telling the truth or not) they do that with the words they use and by the way they put together some of their sentences, by the adjectives they used. And he could come back to me and say, “This guy is lying.”  And then it was a matter of trying to find out why. But I’m not good at that and that that takes a lot of skill.

But basically I would say you have to be like a juror. You have to be like a juror in the case. So if you read this anti-Church stuff on the web, you’ve got to at least be a juror and say, “Hey, I’m going to give the other side equal opportunity.” 

Faith Is Not Blind: But it doesn’t say “Anti” at the top of the page you’re reading.

Bill: But you’ll know. There are several websites out there that try to pretend that they are fair and that they are honest. I don’t know if you want them named in here, but I’ve listened to them all. I’ve read the CES letter. I have listened to John Dehlin and I’ve read Denver Snuffer stuff. And you can pick up on it. They have an agenda and you can tell by their adjectives. It started with Fawn Brodie and No Man Knows My History. I could tell by her adjectives that she was not fair.

Faith s Not Blind: When you say that kind of material has an agenda, what do you mean?

Bill: It wants to convince you that the Church is not true. But it’s not just saying here’s a problem. It doesn’t ask an open-ended question. It’s like a leading question that we would use in court. It doesn’t say, “How did Joseph Smith translate or dictate or produce the Book of Abraham?” It doesn’t say that. It makes assumptions. For example, it makes an assumption about the Book of Abraham, that the papyri that we have in the Book of Mormon doesn’t match up with what the Book of Abraham says and therefore he translated it wrong. They’re assuming that he had something in front of him and that he was translating and that isn’t how it happened at all. But that’s how a website like that would treat that.

Faith Is Not Blind: This has really been helpful, Bill. And I want to repeat what is especially interesting to me about this. And that is when you first ran across the discoveries that you’ve described here about the difficulties with really believing the evidence of critics of the church was when you yourself were trying to disprove the Church. So you were predisposed to want to accept that. But there was something really in your neutrality that would help you with your questions.

Bill: I was lucky. I was protected. I went through that and after that my next step was when I had another question. I went, “Good grief. How do I even know Christianity is true?” So I went and I bought the scriptures of every religion in the world. And I read Lao Tse Tung and I read many things about Buddhism (they don’t have scriptures but I read parts of the Tripitaka.)  I read the Bhagavad Gita of Hinduism. I bought a Quran and I read that because I went, “You know,  I feel pretty good about joining the Church, but I don’t know that Christianity is even true.”  So I had to back up at that  point and I read all those scriptures. It became really apparent to me when I did that that Christianity was true. That became very apparent to me just reading the scriptures. And I didn’t go to commentaries on what the Quran says. I didn’t go to commentaries on the Bhagavad Gita. I just read the scriptures themselves. I wanted to be able to read it, to get it straight from the horse’s mouth.  I did not want it to be interpreted by somebody else.  I thought, “I’m a smart guy. I can understand what this is supposed to mean.”  So I paid the price and I did all that. And after I did all that, I didn’t have any trouble after that. I thought, “Christianity is true.”  And with Christianity, I didn’t have the problems of which church is right. To me, it was the Catholics or the Mormons. Those are the only two that really had a leg to stand on in my opinion.  And the LDS church just seemed absolutely true. 

So for the next 20 years, I was a good, faithful Mormon. On the scale of “Beyond Reasonable Doubt,”  I was to the point of “Beyond Reasonable Doubt,” but the door was still cracked open a little bit, And then I got cancer and I went into the hospital. It was for prostate cancer. It was a very aggressive prostate cancer that had metastasized. So surgery was pretty much the only option because it was aggressive and it had to be done right then. Even so, they told me, “You’ll be in the hospital one night and maybe you’ll be in the hospital two nights.”  And everything went wrong. I was in the hospital for 45 days. The first three or four days were life-or-death. They had to perform surgery several times. They quarantined me in the hospital because they thought I had that skin-eating bacterial stuff. And they didn’t know if I was going to live or not. This just happened this past October, but during that time, during that 45 days, I had experiences that closed the door. The veil was literally pierced. And I don’t want to go too far into that or make people think I saw or did more than I saw or did. But I will say I used to get mad at President Packer because he’d say, “These things are sacred. They’re not secret. And that’s why we don’t talk about them.”  And I used to wonder about the verse about Christ praying “words that cannot be repeated or said” And I admit I got upset at President Packer, thinking, “Well, if you saw Jesus, why didn’t you just say it instead of saying it’s sacred and not secret.” And now I know. I had experiences during that 45 days when literally my life was in the balance. And I related to the Martin Handcart Company what they learned through those extremities. At one point I had people come to me and say, “You ought to sue these doctors. They really messed up.” There’s no way I was going to do that. I’m a lawyer. I know what that involves. I also know my doctor had nothing but the best of intentions for me. It’s just some stuff happened and there’s no way I was going to sue him. But I remember reading about a Martin Handcart Company Sunday School class in Salt Lake City. People said they should have never sent them out that late they criticized the leaders of the church for sending out the handcart company so late. And an old man gets up in the Sunday School class and says, “You know nothing of what you’re talking about. Yes, we had some tough times in the handcart company, but it was through our extremities that we learned of God. And I would never change it for anything.”  

My experience in the hospital is the same thing. There is no way I would want to go through that again. There were times I was praying so fervently. I wanted the Lord to either take me or to take away the pain. It was so bad that I didn’t care whether I lived or died. I just wanted it to end. But through that experience any doubt that I had was removed. I learned that God is there. He is our Heavenly Father.  He knows each and every one of us personally–very personally. I know that Jesus is our brother, that he atoned for each of us individually. I was not a blanket Atonement. He knows each one of us personally and what we have gone through. He knows exactly what we experience because he has experienced it. When we cry tears, He’s crying too because he’s already cried the tears that we’re crying. I know that and I’m like President Packer now. I will not go into it because it is sacred. But I will bear my testimony that it’s absolutely true. And I don’t like saying “the church is true” because we’ve said that in Sacrament Meetings for forever and people get out and say that out of custom and tradition. To me as a lawyer to say, “I know it’s true,” your words better be right.  You’d better be accurate. I built my whole trial career on the exactness of words and made a big deal of it, so I don’t like that phrase “the church is true.”  But I do like the phrase “I know that the Church of Jesus Christ of Latter-day Saints is the kingdom of God on Earth.”

Is it perfect? No. As leaders, are we perfect? No. But I know that it is led and given to us to the extent that we can understand.  I can only understand to a certain point. Aad if the Lord tries to explain something beyond what  I can understand,  just like I’m trying to express to you now,  I can only go to a certain point. And so anyone that has a crisis of faith, I would strongly say, “Be a juror. Listen to both sides before you make that decision. And when you do listen, be as honest and open-minded as you can. Don’t have an agenda going into it.” Now I had an agenda when I started. I wanted to leave the Church and be a wild fraternity brother and have no consequences for it, but for whatever reason my makeup didn’t didn’t allow that to happen. But I would say have an open mind and listen to both sides. If you read something that’s “Anti” then go to those websites that will answer those questions. You can go to the Neal Maxwell Institute Website. You can go to the Fair Mormon Website. You can find books that are written by apologists of the Church. You can listen to podcasts. You can watch on YouTube talks by Dan Peterson and Truman Madsen. There are other people that I have high regard for. And when you listen to both sides, if you have an open heart, you can sit quietly and meditate about it. David O McKay said meditation is important. And I do that even though that’s rather a Buddhist way of doing. If you listen in your mind and heart quietly, the truth will come. Have confidence in that. If it makes you feel good, it’s probably the Lord telling you something. But you have to realize where you are and how much you know. That’s going to be filtered to an extent. The feelings are going to be stronger or lesser depending on how much knowledge you have.

Faith Is Not Blind: Bill, that’s really valuable. It’s so personal. It’s so experience-based. And I really thank you for being here and sharing with us today.

Bill: It was a pleasure to be here. Thank you for letting me come in.