In California, the legal issue or the type of case at hand determines the standard of proof. Stated another way, different levels or standards of proof may apply depending on the type of case. We will start with the least stringent and will proceed to the most stringent.
There are areas in law where strict liability applies. In strict liability, when the evidence demonstrates certain facts, there is culpability (regardless of the actor’s state of mind or intentions).
In a criminal setting, for example, if an adult and a minor engage in intercourse, the adult will be held strictly liable for that occurrence. The adult’s intention, state of mind, or mens rea element need not be proven.
In a civil setting, for example, companies that deal with ultra-hazardous activities (e.g., explosives, wild animals) or those that place defective products on the market, will be held strictly liable for the damages that ensue.
Strict liability seems to apply in situations where the law requires a specific cut-off point or a bright line rule.
* Though not exactly a burden of proof, it is included in this article in order to provide a more complete account of legal requirements. Depending on the type of legal matter, different burdens will apply in a strict liability case. Once proven in accordance with the applicable burden, that will limit one's defenses to what has been proven.
This level of proof generally applies in civil litigation. Where the dispute is over money, preponderance of the evidence is the applicable standard. Generally, it is applicable in tort law (e.g., personal injury) and contractual disputes.
This level of proof has been described as “more likely than not” or “more likely right than wrong” or “51 percent ” or even “50 percent plus a feather.” All that is required is a slight tilting of the scales to meet this burden.
It is a less stringent threshold because only money, as opposed to life or liberty, is at issue.
The next level of proof is clear and convincing evidence. It requires a higher level of proof because now there is something more important than damages at issue.
This standard of proof generally applies in cases where punitive or exemplary damages are sought, a person is being committed involuntarily to an institution, or in determining rights of parents.
Clear and convincing evidence is exactly as its name implies. The evidence must be both clear and convincing.
A substantial showing or high probability is required because now we are dealing with more serious matters.
Proof beyond a reasonable doubt is the highest level of proof and for excellent reason. We are now dealing with people's freedoms, liberties, and lives.
Because people may get executed or incarcerated, the highest level of proof is required and justifiably so.
This standard has been described in many ways. For example, it’s been said to require an “abiding conviction to a moral certainty.” Mere doubt is not sufficient to vote someone guilty. It does not require an absolute or 100% sense of sureness, but “probably guilty” and “likely guilty” are not enough.
To put it in perspective, it requires more than “clear and convincing evidence.” It’s a higher burden of proof than when the government wants to take children from parents or to involuntarily commit a person to an institution.
Doubt, unsureness, possibilities, probabilities, may have, might have, uncertainty, tentativeness, hesitancy, vacillation, etc., all fall short of what this legal standard requires.
It is crucial to familiarize the jurors with the different legal standards so that they have a sense of what level of proof a conviction requires.
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