Happy Monday FRians! We hope everyone had a nice weekend and blessed Easter, if you celebrate. As always, Monday’s post comes to us from Stephen Hall. Thanks, Stephen.
One of the most scandalous and nefarious practices in the field of law is the misstatement of the standard of proof.
The standard of proof is sometimes confused with the burden of proof. The burden of proof is the allocation of whose duty or burden it is to convince the trier of fact that the facts are actually as they present them, more appropriately called the burden of persuasion. The standard of proof is not unconnected but rather measure just how certain one needs to be persuaded of the facts.
Generally viewed, the standard of proof is compared to a corresponding level of probability that the fact is as presented. While there are different standards between civil and criminal cases, and some people wish to justify these differences upon the initial presumptions , the standards of reason must mean that all such standards are in some manner related.
That is to say that for different purposes we are willing to accept different levels of evidence to convince us that some action or another is appropriately warranted. It is easier to see this in the criminal cases as the standards of proof are expected to increase as the case progresses.
It has been far too often repeated that a good prosecutor could, on a good day, get and indictment for a ham sandwich. However, the standard of proof for an indictment is not the lowest standard of proof, so let us review the standards of proof starting from the lowest to the highest.
The lowest standard of proof is one of recent origin, that level of scrutiny which might justify a police officer of stopping a person who looks somewhat suspicious to inquire further as to what they might be about, this is called appropriately “reasonable suspicion”.
As an officer stopping someone is an infringement upon their liberty, however minor, it is only just that there be some level of review. A “reasonable suspicion” standard is simply a subjective assessment that the person is up to something nefarious, but must be subject to review so that too much leeway is granted to officer to abuse his position to harass and annoy innocent people.
Less problematic is the standard for a warrant, which is based upon “probable cause”, that is attested facts which an objective judge deems sufficient to justify further investigation and inconvenience. Unlike the “reasonable suspicion” standard, this has the advantage of being objectively stated. This standard relied upon objective facts and require a level of specificity which gives one greater confidence that action is appropriate.
The following I would group together in the level of standard of proof, because the standard is essentially the same, that would be an indictment, a complaint or motion to dismiss, the tort defense of necessity, the criminal defense of self defense, or in some cases what could be defined as a reasonable basis of belief.
This standard is based upon facts believed to be true, and presumed to be true in determining the standard. Essentially, if one presumes the facts to be exactly as presented by the one side, does the case have merit and stand. If the facts of a complaint or indictment are as presented, could they prevail, or is it dismissed for failure to state a complete and valid claim? If a person believed themselves to be in danger, was that belief reasonable from their perspective?
All of these various standards of proof are before we even evaluate the likelihood that the facts are true and are mere measures of the sufficiency of the facts as justification.
Of those standards which actually evaluate the likelihood that the facts are as presented, the lowest level is actually a standard of appeal, that is whether there is “substantial evidence” to support the decision at a previous hearing or trial. One could reasonably estimate that this equated to about a 25% chance that the decision below was correct, that the facts are as was decided previously.
I personally think this is one area where our legal system has gone off the rails for a couple of reasons.
First, it is often lowered even further as a standard in the name of “deference” to just simply looking to see if there is any evidence which supports the conclusion rather than “substantial” evidence. This leads lower level courts to expend even greater costs in time and money to cite every possible justification for their decision, and excessively long and wordy decisions.
Second, even if properly interpreted, it is not really a meaningful standard of review which lay people expect to be an objective evaluation with a fresh set of eyes to keep the courts objective and from showing favoritism. While the lower standard for review makes it easier for the higher courts, it actually lowers the required standard of proof at the lower courts for all practical purposes to just that level which they expect to be reviewed, and can actually encourage bias in lower courts and administrative hearings.
Then we have the standard in civil negligence cases, which is the standard of a “preponderance of the evidence”. The preponderance of the evidence standard has often been cited as the “more likely than not” standard, which is to say that as long as the likelihood is more than 50%, then the decision goes in the favor of one side or the other.
While many courts have accapted this lexicon, I am inclined to think that before we foist liability upon a person for negligence, they ought to be given some benefit of the doubt and if I had my way, I would raise that standard to over 60%, if not to the next higher standard, as I hesitate to declare someone liable by what is essentially a flip of the coin in a culture with is as likely to say that a businessman is liable simply because he has money rather than an actual evaluation of negligence.
In all other civil cases, as once upon a time “negligence” was a minor trivial part of civil cases before it grew way out of proportion, the standard applied is one of “clear and convincing” evidence, in other words it was the burden of a claimant to “convince” the judge or jury of the facts, not merely have them think that “maybe” they were right. Legal scholars debate whether this is about a 75% or up to a 90% likelihood or probability of correctness, but it is short of proof.
Finally, in criminal cases we get to the highest standard, proof “beyond a reasonable doubut”. Now it is to be understood that such proof does not have to be beyond any doubt, just beyond such doubts as are reasonable. Sure, television has convinced people that a secret long lost evil identical twin might be responsible, but that really is not reasonable. Generally, in a statistical fashion, that places the probability of guilt at about 99%, sometimes as low as 95% because absolute certainty is virtually impossible.
All of this background is merely set up for my thoughts on this issue, a preliminary post, with enough substance and question to foster discussion. If you are further interested, a more genteel rendition of these standards: https://www.nolo.com/legal-encyclopedia/legal-standards-proof.html
Stay tuned.
