I would like to send my condolences to Fresno, California's Chief of Police Jerry Dyer as a siren. Today November 15, 2018 I hold a heavy heart from what brought the end of a 32 year career with the Fresno Police Department as former Captain Marty West ended his Watch on an unfortunate note, former Captain, retired Chief of Police Marty West was fatally shot by an officer of the law on Monday at his residence in Fresno, California. Due to the details of the report I will not entertain it's pleasure of gossip, I will state that a Cop has brought to our attention the harsh environment of every police department and the candor of the public at-large and the effect of their behavior that would have brought such cause that retired Oakdale Chief of Police Marty West former Captain of the Fresno Police Department was brought to the End of Watch by an officer involved deadly gunshot incident inside his home in Fresno, California.
The public at-large should be publicly shamed. The past few years in the United States of America the public at-large has without a doubt caused a stress that the retired and working Cops have had a burden of proof placed on their shoulders and weight that their foot must impress their life as the behavior of the public at-large has most certainly had it's effect and caused their lives to attain new reason for the years on the job. This is not an emergency broadcast message as suicide is against the law and as not one media station in the Bay Area or Nationally made mention to retired Oakdale Chief of Police, former Captain of the Fresno Police Department Marty West I carpe diem (https://en.wikipedia.org/wiki/Carpe_diem).
I would have thought that as the former Captain of the Fresno Police Department, retired Oakdale Chief of Police Marty West would have made the Associated Press. Mention would have made the AP should the device been a person at-large or persons at-large with cell phone in capture as this was an officer based shooting. I would say that the AP found that there was not enough inflammatory information to excite the public at-large with as this exact or very situation has brought so much to each National Media Broadcaster by both Anchor and seat in the past so many minutes on their News Channels that I now state the exist.
I understand the National Media reports for attention purposes only, in other words, the National and Local Television/Radio Stations cause and excite rally by shout, rally by protest, rally by fault to protect their jobs and/or positions in the Social Media Systems. And to have their stories and live television propagate propaganda as these specific Police Department Stories have without doubt interrupted our regular scheduled programs and overtaken the National Broadcast Systems/Social Media Systems. Since the comeback on the report out of Fresno on retired Oakdale Chief of Police, former Captain of the Fresno Police Department Marty West in Fresno, California would hinder the National and Local Media Stations/Social Media Systems and their perceived coercion would become self evident it is the person at-large that in addition must be reported to be in cohoots as reported Cop shootings have swamped our National and local/Satellite/Cable television, their (the public at-large) the National and Local Media's reporters as the attention to the scene of the crime would have negated their (National and Local Media/Social Media Systems) propaganda and not brought back to the National Media more stories as there was no exception given to retired Oakdale Chief of Police former Captain of the Fresno Police Department Marty West.
The scene of the crime, the residence of retired Oakdale Chief of Police, former Captain of the Fresno Police Department Marty West, Dyer's relative, quote "Dyer said West, 63, was a friend and family member — Dyer’s uncle and West’s father were brothers."
The United States of America is now in contest.
A Class Action law suit on behalf of the POA must be filed, PTSD is cause to effect of death by gunshot, this is a case based schedule now reported and posted on my blog An Independent Mind, Knot Logic by I, Karen A. Placek. This dates and times this case as noted: Thursday, November 18, 2018 at 6:56 AM. Thank you for your attention in this action and reported data.
_ _ _ _ _ _ _
n. in criminal law, a defendant's plea in court that he/she will not contest
the charge of a particular crime, also called nolo contendere. ... It
is standard practice for the judge to ask either the attorneys or the
defendant, "Is there a factual basis for the plea?"
Former police captain shot and killed by officer in northeast Fresno
A former Fresno police captain was fatally shot by an officer in northeast Fresno on Monday. . . . . . . . . . . . . . . . https://www.fresnobee.com/news/local/crime/article221549670.html
A "burden of persuasion" or "risk of nonpersuasion"[4] is an obligation that remains on a single party for the duration of the court proceeding.[5] Once the burden has been entirely discharged to the satisfaction of the trier of fact, the party carrying the burden will succeed in its claim. For example, the presumption of innocence in a criminal case places a legal burden upon the prosecution to prove all elements of the offense (generally beyond a reasonable doubt), and to disprove all the defenses except for affirmative defenses in which the proof of non-existence of all affirmative defense(s) is not constitutionally required of the prosecution.[6]
The burden of persuasion should not be confused with the evidential burden, or burden of production, or duty of producing (or going forward with evidence)[7] which is an obligation that may shift between parties over the course of the hearing or trial. The evidential burden is the burden to adduce sufficient evidence to properly raise an issue at court.
Per Thompson v. City of Louisville (1960), the some evidence standard is required to overrule a jury's finding of guilt in criminal cases.
The reasonable indication standard is used in interpreting trade law in determining if the United States has been materially injured.[9]
An investigatory stop is a seizure under the Fourth Amendment. The state must justify the seizure by showing that the officer conducting the stop had a reasonable articulable suspicion that criminal activity was afoot. The important point is that officers cannot deprive a citizen of liberty unless the officer can point to specific facts and circumstances and inferences therefrom that would amount to a reasonable suspicion. The officer must be prepared to establish that criminal activity was a logical explanation for what he perceived. The requirement serves to prevent officers from stopping individuals based merely on hunches or unfounded suspicions. The purpose of the stop and detention is to investigate to the extent necessary to confirm or dispel the original suspicion. If the initial confrontation with the person stopped dispels suspicion of criminal activity the officer must end the detention and allow the person to go about his or her business. If the investigation confirms the officer's initial suspicion or reveals evidence that would justify continued detention the officer may require the person detained to remain at the scene until further investigation is complete.
There is still an ongoing debate as to the exact meaning of this phrase. Some courts have said it should be a new standard while others have equated it with the "reasonable suspicion" of the Terry stop. Most courts have agreed it is somewhere less than probable cause.
In the criminal context, the U.S. Supreme Court in United States v. Sokolow, 490 U.S. 1 (1989), determined that probable cause requires "a fair probability that contraband or evidence of a crime will be found" in deciding whether Drug Enforcement Administration agents had a reason to execute a search. Courts vary when determining what constitutes a "fair probability": some[who?] say 30%, others 40%, others 51%.
A good illustration of this evidence/intrusiveness continuum might be a typical police/citizen interaction. Consider the following three interactions:
This applies to other court decisions. The trier of fact's decision cannot be baseless.[11]
The standard is met if the proposition is more likely to be true than not true. The standard is satisfied if there is greater than fifty percent chance that the proposition is true. Lord Denning, in Miller v. Minister of Pensions,[12] described it simply as "more probable than not." Until 1970, this was also the standard used in juvenile court in the United States.[13]
This is also the standard of proof used when determining eligibility of unemployment benefits for a former employee accused of losing the job through alleged misconduct. In most US states, the employer must prove this case with a preponderance of evidence.
Preponderance of the evidence is the standard of proof used for immunity from prosecution under Florida's controversial stand-your-ground law. The defense must present its evidence in a pre-trial hearing, show that the statutory prerequisites have been met, and then request that the court grant a motion for declaration of immunity. The judge must then decide from the preponderance of the evidence whether to grant immunity.[14] This is a far lower burden than "beyond a reasonable doubt," the threshold a prosecutor must meet at any proceeding criminal trial,[15] but higher than the "probable cause" threshold generally required for indictment.
This standard is used in many types of equity cases, including paternity, persons in need of supervision, juvenile delinquency, child custody, the probate of both wills and living wills, petitions to remove a person from life support ("right to die" cases),[17] and many similar cases.
Clear and convincing proof means that the evidence presented by a party during the trial must be highly and substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its factuality. In this standard, a greater degree of believability must be met than the common standard of proof in civil actions, which only requires that the facts as a threshold be more likely than not to prove the issue for which they are asserted.
This standard is also known as "clear, convincing, and satisfactory evidence"; "clear, cognizant, and convincing evidence"; and "clear, unequivocal, satisfactory, and convincing evidence", and is applied in cases or situations involving an equitable remedy or where a presumptive civil liberty interest exists.
Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that one would be willing to rely and act upon it without hesitation in the most important of one's own affairs. However, it does not mean an absolute certainty. The standard that must be met by the prosecution's evidence in a criminal prosecution is that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent unless and until proven guilty.
If the trier of fact has no doubt as to the defendant's guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proved the defendant's guilt beyond a reasonable doubt and the defendant should be pronounced guilty.
The term connotes that evidence establishes a particular point to a moral certainty which precludes the existence of any reasonable alternatives. It does not mean that no doubt exists as to the accused's guilt, but only that no reasonable doubt is possible from the evidence presented.[18] Further to this notion of moral certainty, where the trier of fact relies on proof that is solely circumstantial, i.e., when conviction is based entirely on circumstantial evidence, certain jurisdictions specifically require the prosecution's burden of proof to be such that the facts proved must exclude to a moral certainty every reasonable hypothesis or inference other than guilt.
The main reason that this high level of proof is demanded in criminal trials is that such proceedings can result in the deprivation of a defendant's liberty or even in his or her death. These outcomes are far more severe than in civil trials, in which monetary damages are the common remedy.
Another noncriminal instance in which proof beyond a reasonable doubt is applied is LPS conservatorship.
The criminal standard was formerly described as "beyond reasonable doubt". That standard remains, and the words commonly used, though the Judicial Studies Board guidance is that juries might be assisted by being told that to convict they must be persuaded "so that you are sure".
The civil standard is 'the balance of probabilities', often referred to in judgments as "more likely than not".
The civil standard is also used in criminal trials in relation to those defences which must be proven by the defendant (for example, the statutory defence to drunk in charge that there was no likelihood of the accused driving while still over the alcohol limit[19]). However, where the law does not stipulate a reverse burden of proof, the defendant need only raise the issue and it is then for the prosecution to negate the defence to the criminal standard in the usual way (for example, that of self-defence[20]).
Prior to the decision of the House of Lords in Re B (A Child) [2008] UKHL 35[21] there had been some confusion – even at the Court of Appeal – as to whether there was some intermediate standard, described as the 'heightened standard'. The House of Lords found that there was not. As the above description of the American system shows, anxiety by judges to make decisions on very serious matters on the basis of the balance of probabilities had led to a departure from the common law principles of just two standards. Baroness Hale said:
In 2002, such practice in England and Wales was challenged as contrary to the European Convention on Human Rights (ECHR), art.6(2) guaranteeing right to a fair trial. The House of Lords held that:[27][28]
In Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994), the Supreme Court explained that burden of proof is ambiguous because it has historically referred to two distinct burdens: the burden of persuasion, and the burden of production.
The Supreme Court discussed how courts should allocate the burden of proof (i.e., the burden of persuasion) in Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49 (2005). The Supreme Court explained that if a statute is silent about the burden of persuasion, the court will "begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims." In support of this proposition, the Court cited 2 J. Strong, McCormick on Evidence § 337, 412 (5th ed. 1999), which states:
Criminal Law - Cases and Materials, 7th ed. 2012, Wolters Kluwer Law & Business; John Kaplan, Robert Weisberg, Guyora Binder, ISBN 978-1-4548-0698-1, [1]
Transnational principle of law: Trans-Lex.org
Barron's Law Dictionary, pp. 55-56 (2nd ed. 1984); Black's Law Dictionary, p. 178 (5th ed. 1979).
Barron's Law Dictionary, p. 55 (2nd ed. 1984).
Black's Law Dictionary, p. 178 (5th ed. 1979).
Patterson v. New York, 432 U.S. 197 (1977)
Barron's Law Dictionary, p. 56 (2nd ed. 1984).
Hirsch Ballin, Marianne (Mar 6, 2012). Anticipative Criminal Investigation: Theory and Counterterrorism Practice in the Netherlands and the United States. p. 525. Retrieved 5 April 2017.
Pak, Nam (1988). "American Lamb Company v. United States: Application of the Reasonable Indication Standard". Northwest Journal of International Law and Business. Retrieved 9 April 2017.
See Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting from Consolidated Edison Co. v. NLRB, 305 U. S. 197, 229 (1938).
California Courts http://www.courts.ca.gov/12431.htm. Retrieved 10 February 2017. Missing or empty
Miller v. Minister of Pensions [1947] 2 All ER 372
In re Winship, 397 U.S. 358, 90 S.Ct. 1068 (1970)
"Archived copy". Archived from the original on 2013-11-04. Retrieved 2013-07-29.
"Florida 'stand your ground' law yields some shocking outcomes depending on how law is applied". Tampa Bay Times.
Calderon v. Thompson, 523 U.S. 538 (1998). The petitioner, Thomas M. Thompson, a convicted rapist/murderer, was executed on July 14, 1998.
See, Quinlan v. New Jersey, and Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).
Green v The Queen [1971] HCA 55, (1971) 126 CLR 28 at p. 33, High Court (Australia).
s.5 Road Traffic Act 1988; see R. vs Sheldrake)
"Self-Defence and the Prevention of Crime - The Crown Prosecution Service". www.cps.gov.uk.
"House of Lords - In Re B (Children) (Fc) Appellate Committee Lord Hoffmann Lord Scott of Foscote Lord R". parliament.uk.
Cal. Evid. Code Section 662, available at http://legalmasters.net/practices/real-estate-law/commonly-referenced-real-estate-statutes-and-regulations/california-evidence-code-sections-660-668/
"Woolmington v DPP [1935] UKHL 1".
The
critical facts of a criminal case are whether the crime charged was
committed and whether the defendant is criminally responsible for the
commission of the crime.
Jackson v. Virginia, 443 U.S. 307 (1979).
Road Traffic Offenders Act 1988, s.5(2)
Herring, J. (2004). Criminal Law: Text, Cases, and Materials. Oxford: Oxford University Press. pp. 58–64. ISBN 0-19-876578-9.
Burden of proof (law)
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The burden of proof (Latin: onus probandi) is the obligation of a party in a trial to produce the evidence
that will prove the claims they have made against the other party. In a
legal dispute, one party is initially presumed to be correct and gets
the benefit of the doubt, while the other side bears the burden of
proof. When a party bearing the burden of proof meets its burden, the
burden of proof switches to the other side. Burdens may be of different
kinds for each party, in different phases of litigation. The burden of production is a minimal burden to produce at least enough evidence for the trier of fact to consider a disputed claim.[1]:16–17
After litigants have met the burden of production and their claim is
being considered by a trier of fact, they have the burden of persuasion,
that enough evidence has been presented to persuade the trier of fact
that their side is correct. There are different standards of persuasiveness ranging from a preponderance of the evidence,
where there is just enough evidence to tip the balance, to proof beyond
a reasonable doubt, as in United States criminal courts.[1]:17
The burden of proof is always on the person who brings a claim in a dispute. It is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, a translation of which in this context is: "the necessity of proof always lies with the person who lays charges."[2]
The party that does not carry the burden of proof carries the benefit of assumption of being correct, they are presumed to be correct, until the burden shifts after presentation of evidence by the party bringing the action. An example is in an American criminal case, where there is a presumption of innocence by the defendant. Fulfilling the burden of proof effectively captures the benefit of assumption, passing the burden of proof off to another party.
The
term "burden of proof" is used to mean two kinds of burdens: The burden
of production (or the burden of "going forward with the evidence") and
the burden of persuasion.[3]
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The examples and perspective in this article deal primarily with common law and the United States and do not represent a worldwide view of the subject. (October 2016) (Learn how and when to remove this template message)
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| Evidence |
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| Types of evidence |
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| Witnesses |
| Hearsay and exceptions |
| Other common law areas |
The burden of proof is always on the person who brings a claim in a dispute. It is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, a translation of which in this context is: "the necessity of proof always lies with the person who lays charges."[2]
The party that does not carry the burden of proof carries the benefit of assumption of being correct, they are presumed to be correct, until the burden shifts after presentation of evidence by the party bringing the action. An example is in an American criminal case, where there is a presumption of innocence by the defendant. Fulfilling the burden of proof effectively captures the benefit of assumption, passing the burden of proof off to another party.
Contents
Definition
A "burden of persuasion" or "risk of nonpersuasion"[4] is an obligation that remains on a single party for the duration of the court proceeding.[5] Once the burden has been entirely discharged to the satisfaction of the trier of fact, the party carrying the burden will succeed in its claim. For example, the presumption of innocence in a criminal case places a legal burden upon the prosecution to prove all elements of the offense (generally beyond a reasonable doubt), and to disprove all the defenses except for affirmative defenses in which the proof of non-existence of all affirmative defense(s) is not constitutionally required of the prosecution.[6]
The burden of persuasion should not be confused with the evidential burden, or burden of production, or duty of producing (or going forward with evidence)[7] which is an obligation that may shift between parties over the course of the hearing or trial. The evidential burden is the burden to adduce sufficient evidence to properly raise an issue at court.
Standard of proof in the United States
Burden of proof refers most generally to the obligation of a party to prove its allegations at trial. In a civil case, the plaintiff sets forth its allegations in a complaint, petition or other pleading. The defendant is then required to file a responsive pleading denying some or all of the allegations and setting forth any affirmative facts in defense. Each party has the burden of proof of its allegations.Legal standards for burden of proof
Some evidence
Per Superintendent v. Hill (1985), in order to take away a prisoner's good conduct time for a disciplinary violation, prison officials need only have "some evidence," i.e., "a modicum of evidence".Per Thompson v. City of Louisville (1960), the some evidence standard is required to overrule a jury's finding of guilt in criminal cases.
Reasonable indications
"Reasonable indication is substantially lower than probable cause; factors to consider are those facts and circumstances a prudent investigator would consider, but must include facts or circumstances indicating a past, current, or impending violation; an objective factual basis must be present, a mere 'hunch' is insufficient."[8]The reasonable indication standard is used in interpreting trade law in determining if the United States has been materially injured.[9]
Reasonable suspicion
Reasonable suspicion is a low standard of proof to determine whether a brief investigative stop or search by a police officer or any government agent is warranted. It is important to note that this stop or search must be brief; its thoroughness is proportional to, and limited by, the low standard of evidence. A more definite standard of proof (often probable cause) would be required to justify a more thorough stop/search. In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court ruled that reasonable suspicion requires specific, articulable, and individualized suspicion that crime is afoot. A mere guess or "hunch" is not enough to constitute reasonable suspicion.An investigatory stop is a seizure under the Fourth Amendment. The state must justify the seizure by showing that the officer conducting the stop had a reasonable articulable suspicion that criminal activity was afoot. The important point is that officers cannot deprive a citizen of liberty unless the officer can point to specific facts and circumstances and inferences therefrom that would amount to a reasonable suspicion. The officer must be prepared to establish that criminal activity was a logical explanation for what he perceived. The requirement serves to prevent officers from stopping individuals based merely on hunches or unfounded suspicions. The purpose of the stop and detention is to investigate to the extent necessary to confirm or dispel the original suspicion. If the initial confrontation with the person stopped dispels suspicion of criminal activity the officer must end the detention and allow the person to go about his or her business. If the investigation confirms the officer's initial suspicion or reveals evidence that would justify continued detention the officer may require the person detained to remain at the scene until further investigation is complete.
Reasonable to believe
In Arizona v. Gant (2009), the United States Supreme Court defined a new standard, that of "reasonable to believe." This standard applies only to vehicle searches after the suspect has been placed under arrest. The Court overruled New York v. Belton (1981) and concluded that police officers are allowed to go back and search a vehicle incident to a suspect's arrest only where it is "reasonable to believe" that there is more evidence in the vehicle of the crime for which the suspect was arrested.There is still an ongoing debate as to the exact meaning of this phrase. Some courts have said it should be a new standard while others have equated it with the "reasonable suspicion" of the Terry stop. Most courts have agreed it is somewhere less than probable cause.
Probable cause
Probable cause is a relatively low standard of proof, which is used in the United States to determine whether a search, or an arrest, is warranted. It is also used by grand juries to determine whether to issue an indictment. In the civil context, this standard is often used where plaintiffs are seeking a prejudgement remedy.In the criminal context, the U.S. Supreme Court in United States v. Sokolow, 490 U.S. 1 (1989), determined that probable cause requires "a fair probability that contraband or evidence of a crime will be found" in deciding whether Drug Enforcement Administration agents had a reason to execute a search. Courts vary when determining what constitutes a "fair probability": some[who?] say 30%, others 40%, others 51%.
A good illustration of this evidence/intrusiveness continuum might be a typical police/citizen interaction. Consider the following three interactions:
- no level of suspicion required: a consensual encounter between officer and citizen
- reasonable suspicion required: a stop initiated by the officer that would cause a reasonable person not to feel free to leave
- probable cause required: arrest.
Some credible evidence
One of the least reliable standards of proof, this assessment is often used in administrative law, and often in Child Protective Services (CPS) proceedings in some states. The "some credible evidence" standard is used as a legal placeholder to bring some controversy before a trier of fact, and into a legal process. It is on the order of the factual standard of proof needed to achieve a finding of "probable cause" used in ex parte threshold determinations needed before a court will issue a search warrant. It is a lower standard of proof than the "preponderance of the evidence" standard. The standard does not require the fact-finder to weigh conflicting evidence, and merely requires the investigator or prosecutor to present the bare minimum of material credible evidence to support the allegations against the subject, or in support of the allegation; see Valmonte v. Bane, 18 F.3d 992 (2nd Cir. 1994). In some Federal Appellate Circuit Courts, such as the Second Circuit, the "some credible evidence" standard has been found constitutionally insufficient to protect liberty interests of the parties in controversy at CPS hearings.Substantial evidence
In some appeals from decisions of administrative agencies, the courts apply a "substantial evidence" standard of review of the agency's factual findings. In the United States, for example, if a Social Security Disability Insurance claimant is found "not disabled" (and, therefore, ineligible for benefits) by an Administrative Law Judge (ALJ) and the claimant appeals, both the Appeals Council (the body within the Social Security Administration that hears appeals from decisions of ALJs) and the Federal courts (which, in this type of case, will normally hear an appeal only after the claimant has exhausted all administrative remedies) will look to see whether the administrative law judge's decision was supported by "substantial evidence" or not. Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."[10]This applies to other court decisions. The trier of fact's decision cannot be baseless.[11]
Preponderance of the evidence
Preponderance of the evidence, also known as balance of probabilities, is the standard required in most civil cases and in family court determinations solely involving money, such as child support under the Child Support Standards Act. It is also the burden of proof of which the defendant must prove affirmative defenses or mitigating circumstances in civil or criminal court. In civil court, aggravating circumstances also only have to be proven by a preponderance of the evidence, as opposed to beyond reasonable doubt (as they do in criminal court).The standard is met if the proposition is more likely to be true than not true. The standard is satisfied if there is greater than fifty percent chance that the proposition is true. Lord Denning, in Miller v. Minister of Pensions,[12] described it simply as "more probable than not." Until 1970, this was also the standard used in juvenile court in the United States.[13]
This is also the standard of proof used when determining eligibility of unemployment benefits for a former employee accused of losing the job through alleged misconduct. In most US states, the employer must prove this case with a preponderance of evidence.
Preponderance of the evidence is the standard of proof used for immunity from prosecution under Florida's controversial stand-your-ground law. The defense must present its evidence in a pre-trial hearing, show that the statutory prerequisites have been met, and then request that the court grant a motion for declaration of immunity. The judge must then decide from the preponderance of the evidence whether to grant immunity.[14] This is a far lower burden than "beyond a reasonable doubt," the threshold a prosecutor must meet at any proceeding criminal trial,[15] but higher than the "probable cause" threshold generally required for indictment.
Clear and convincing evidence
Clear and convincing evidence is a higher level of burden of persuasion than "preponderance of the evidence". It is employed intra-adjudicatively in administrative court determinations, as well as in civil and certain criminal procedure in the United States. For example, a prisoner seeking habeas corpus relief from capital punishment must prove his factual innocence by clear and convincing evidence.[16]This standard is used in many types of equity cases, including paternity, persons in need of supervision, juvenile delinquency, child custody, the probate of both wills and living wills, petitions to remove a person from life support ("right to die" cases),[17] and many similar cases.
Clear and convincing proof means that the evidence presented by a party during the trial must be highly and substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its factuality. In this standard, a greater degree of believability must be met than the common standard of proof in civil actions, which only requires that the facts as a threshold be more likely than not to prove the issue for which they are asserted.
This standard is also known as "clear, convincing, and satisfactory evidence"; "clear, cognizant, and convincing evidence"; and "clear, unequivocal, satisfactory, and convincing evidence", and is applied in cases or situations involving an equitable remedy or where a presumptive civil liberty interest exists.
Beyond reasonable doubt
This is the highest standard used as the burden of proof in Anglo-American jurisprudence and typically only applies in criminal proceedings and when considering aggravating circumstances in criminal proceedings. It has been described, in negative terms, as a proof having been met if there is no plausible reason to believe otherwise. If there is a real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence, or lack of evidence, in a case, then the level of proof has not been met.Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that one would be willing to rely and act upon it without hesitation in the most important of one's own affairs. However, it does not mean an absolute certainty. The standard that must be met by the prosecution's evidence in a criminal prosecution is that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent unless and until proven guilty.
If the trier of fact has no doubt as to the defendant's guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proved the defendant's guilt beyond a reasonable doubt and the defendant should be pronounced guilty.
The term connotes that evidence establishes a particular point to a moral certainty which precludes the existence of any reasonable alternatives. It does not mean that no doubt exists as to the accused's guilt, but only that no reasonable doubt is possible from the evidence presented.[18] Further to this notion of moral certainty, where the trier of fact relies on proof that is solely circumstantial, i.e., when conviction is based entirely on circumstantial evidence, certain jurisdictions specifically require the prosecution's burden of proof to be such that the facts proved must exclude to a moral certainty every reasonable hypothesis or inference other than guilt.
The main reason that this high level of proof is demanded in criminal trials is that such proceedings can result in the deprivation of a defendant's liberty or even in his or her death. These outcomes are far more severe than in civil trials, in which monetary damages are the common remedy.
Another noncriminal instance in which proof beyond a reasonable doubt is applied is LPS conservatorship.
Standard of proof in the United Kingdom
In the three jurisdictions of the UK (Northern Ireland; England & Wales; and Scotland) there are only two standards of proof in trials. (There are others which are defined in statutes, such as those relating to police powers.)The criminal standard was formerly described as "beyond reasonable doubt". That standard remains, and the words commonly used, though the Judicial Studies Board guidance is that juries might be assisted by being told that to convict they must be persuaded "so that you are sure".
The civil standard is 'the balance of probabilities', often referred to in judgments as "more likely than not".
The civil standard is also used in criminal trials in relation to those defences which must be proven by the defendant (for example, the statutory defence to drunk in charge that there was no likelihood of the accused driving while still over the alcohol limit[19]). However, where the law does not stipulate a reverse burden of proof, the defendant need only raise the issue and it is then for the prosecution to negate the defence to the criminal standard in the usual way (for example, that of self-defence[20]).
Prior to the decision of the House of Lords in Re B (A Child) [2008] UKHL 35[21] there had been some confusion – even at the Court of Appeal – as to whether there was some intermediate standard, described as the 'heightened standard'. The House of Lords found that there was not. As the above description of the American system shows, anxiety by judges to make decisions on very serious matters on the basis of the balance of probabilities had led to a departure from the common law principles of just two standards. Baroness Hale said:
70. ... Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.The task for the tribunal then when faced with serious allegations is to recognise that their seriousness generally means they are inherently unlikely, such that to be satisfied that a fact is more likely than not the evidence must be of a good quality. But the standard of proof remains 'the balance of probabilities'.
72. ... there is no logical or necessary connection between seriousness and probability. Some seriously harmful behaviour, such as murder, is sufficiently rare to be inherently improbable in most circumstances. Even then there are circumstances, such as a body with its throat cut and no weapon to hand, where it is not at all improbable. Other seriously harmful behaviour, such as alcohol or drug abuse, is regrettably all too common and not at all improbable. Nor are serious allegations made in a vacuum. Consider the famous example of the animal seen in Regent’s Park. If it is seen outside the zoo on a stretch of greensward regularly used for walking dogs, then of course it is more likely to be a dog than a lion. If it is seen in the zoo next to the lions’ enclosure when the door is open, then it may well be more likely to be a lion than a dog.
Other standards for presenting cases or defenses
Air of reality
The "air of reality" is a standard of proof used in Canada to determine whether a criminal defense may be used. The test asks whether a defense can be successful if it is assumed that all the claimed facts are to be true. In most cases, the burden of proof rests solely on the prosecution, negating the need for a defense of this kind. However, when exceptions arise and the burden of proof has been shifted to the defendant, they are required to establish a defense that bears an "air of reality." Two instances in which such a case might arise are, first, when a prima facie case has been made against the defendant or, second, when the defense mounts an affirmative defense, such as the insanity defense.Evidentiary standards of proof
Depending on the legal venue or intra-case hearing, varying levels of reliability of proof are considered dispositive of the inquiry being entertained. If the subject threshold level of reliability has been met by the presentation of the evidence, then the thing is considered legally proved for that trial, hearing or inquest. For example, in California, several evidentiary presumptions are codified, including a presumption that the owner of legal title is the beneficial owner (rebuttable only by clear and convincing evidence).[22]Examples
Criminal law
In the West, criminal cases usually place the burden of proof on the prosecutor (expressed in the Latin brocard ei incumbit probatio qui dicit, non qui negat, "the burden of proof rests on who asserts, not on who denies"). This principle is known as the presumption of innocence, and is summed up with "innocent until proven guilty," but is not upheld in all legal systems or jurisdictions. Where it is upheld, the accused will be found not guilty if this burden of proof is not sufficiently shown by the prosecution. [23] The presumption of innocence means three things:- With respect to the critical facts of a case the defendant has no burden of proof whatsoever.[24]
- The state must prove the critical facts of the case to the appropriate level of certainty.
- The jury is not to draw any inferences adverse to the defendant from the fact that he has been charged with a crime and is present in court facing the charges against him.
- Burden of proof: P
- Burden of production: P has to show some evidence that D had
committed murder. The United States Supreme Court has ruled that the
Constitution requires enough evidence to justify a rational trier of
fact to find guilt beyond a reasonable doubt. If the judge rules that
such burden has been met, then it is up to the jury itself to decide if
they are, in fact, convinced of guilty beyond a reasonable doubt.[25]
If the judge finds there is not enough evidence under the standard, the
case must be dismissed (or a subsequent guilty verdict must be vacated
and the charges dismissed).
- e.g. witness, forensic evidence, autopsy report
- Failure to meet the burden: the issue will be decided as a matter of law. In this case, D is presumed innocent
- Burden of persuasion: if at the close of evidence, the jury cannot
decide if P has established with relevant level of certainty that D had
committed murder, the jury must find D not guilty of the crime of murder
- Measure of proof: P has to prove every element of the offence beyond a reasonable doubt, but not necessarily prove every single fact beyond a reasonable doubt.
- Burden of production: P has to show some evidence that D had
committed murder. The United States Supreme Court has ruled that the
Constitution requires enough evidence to justify a rational trier of
fact to find guilt beyond a reasonable doubt. If the judge rules that
such burden has been met, then it is up to the jury itself to decide if
they are, in fact, convinced of guilty beyond a reasonable doubt.[25]
If the judge finds there is not enough evidence under the standard, the
case must be dismissed (or a subsequent guilty verdict must be vacated
and the charges dismissed).
In 2002, such practice in England and Wales was challenged as contrary to the European Convention on Human Rights (ECHR), art.6(2) guaranteeing right to a fair trial. The House of Lords held that:[27][28]
- A mere evidential burden did not contravene art.6(2);
- A legal / persuasive burden did not necessarily contravene art.6(2)
so long as confined within reasonable limits, considering the questions:
- What must the prosecution prove to transfer burden to the defendant?
- Is the defendant required to prove something difficult or easily within his access?
- What threat to society is the provision designed to combat?
Civil law
In civil law cases, the "burden of proof" requires the plaintiff to convince the trier of fact (whether judge or jury) of the plaintiff's entitlement to the relief sought. This means that the plaintiff must prove each element of the claim, or cause of action, in order to recover. However, in cases of proving loss of future earning capacity, the plaintiff must prove there is a real or substantial possibility of such a loss occurring.Civil cases of the U.S. Supreme Court
In Keyes v. Sch. Dist. No. 1, 413 U.S. 189 (1973), the United States Supreme Court stated: "There are no hard-and-fast standards governing the allocation of the burden of proof in every situation. The issue, rather, 'is merely a question of policy and fairness based on experience in the different situations.'" For support, the Court cited 9 John H. Wigmore, Evidence § 2486, at 275 (3d ed. 1940). In Keyes, the Supreme Court held that if "school authorities have been found to have practised purposeful segregation in part of a school system," the burden of persuasion shifts to the school to prove that it did not engage in such discrimination in other segregated schools in the same system.In Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994), the Supreme Court explained that burden of proof is ambiguous because it has historically referred to two distinct burdens: the burden of persuasion, and the burden of production.
The Supreme Court discussed how courts should allocate the burden of proof (i.e., the burden of persuasion) in Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49 (2005). The Supreme Court explained that if a statute is silent about the burden of persuasion, the court will "begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims." In support of this proposition, the Court cited 2 J. Strong, McCormick on Evidence § 337, 412 (5th ed. 1999), which states:
The burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion.At the same time, the Supreme Court also recognized "The ordinary default rule, of course, admits of exceptions. ... For example, the burden of persuasion as to certain elements of a plaintiff's claim may be shifted to defendants, when such elements can fairly be characterized as affirmative defenses or exemptions. See, e.g., FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948). Under some circumstances this Court has even placed the burden of persuasion over an entire claim on the defendant. See Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461 (2004)." Nonetheless, "[a]bsent some reason to believe that Congress intended otherwise, therefore, [the Supreme Court] will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief."[citation needed]
See also
References
- R v. DPP, Ex Parte Kebeline [1999] UKHL 43
Bibliography
- Cooper, S. (2003). "Human Rights and Legal Burdens of Proof". Web Journal of Current Legal Issues. 3.
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