Burden of Proof: Civil vs. Criminal (Justice is Blind, but Not Cheap)

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We have all heard the phrase “Burden of Proof” when dealing with legal issues.  But what exactly is it?  The answer is … “it depends,” because it depends on the type of case.

Criminal Cases

In a Criminal case, because the Court is dealing with life and liberty, the standard of proof is the highest possible:  Criminal guilt must be proven “Beyond a Reasonable Doubt.”  Proof “Beyond a Reasonable Doubt” is proof of such a convincing character that a person would be willing to rely and act upon it without hesitation in the most important of a person’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. When you speak with your Criminal Defense Lawyer, additional details will be provided depending on the type of case.

Civil Cases

A civil trial is judged by the lower standard of proof of “Preponderance of the Evidence”  What is this?  To put in bluntly, “Preponderance of the Evidence” means that the plaintiff in a typical case has proven their case by 50% plus a little.  That is sufficient to have a verdict returned for them.  The “little” may be conceptually seen as the “weight of a feather.”  Obtaining a verdict in a case varies on a great many factors:  the venue (where the case is being tried), the defendant (infamous or famous or just an ordinary person), the allegations in the case, the quality of the lawyers, the quality of the expert witnesses, and various other factors.  It is a rare case where a substantial civil or criminal case is tried without expert testimony.  In a personal injury case, experts on both sides of the case may include accident reconstruction experts (if there is a dispute as to how the accident occurred), biomechanical engineers (who will testify regarding the forces exerted on the plaintiff and the likelihood of injury), treating physicians, defense medical examiners, economists, life care planners and a host of others depending upon the case.

The same can hold true in criminal cases.  You may have competing toxicologists in a DUI (“Driving Under the Influence”) case who can testify as to the level of impairment of the defendant at the time of the offense.  You may have police experts testify regarding proper procedures; machine experts testify regarding the charting, recording and maintenance of machines used to obtain the blood alcohol level of the defendant.  In a wrongful shooting case, the list of experts can include Police Training Officers, technical experts and a host of others.  Not surprisingly, the cost of experts is not cheap.  Experts can charge many thousands of dollars for their testimony and they demand to be paid before they even come to Court.


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Possession is Nine-Tenths of the Law

Illustrating the difference between the two systems of justice is a case that is currently pending. The plaintiff in a civil case (who was a defendant in a criminal case) signed a check with someone else’s name when they were not authorized to sign on the account. The defendant took the money. when this taking was discovered, the bank conducted an investigation and  refunded the money.  The defendant was charged criminally.  She escaped liability because a dispute arose as to whose money it was.  The criminal court found that the prosecution did not sustain its burden to prove beyond a reasonable doubt that the money was taken/stolen by the defendant.  In a companion civil case arising out of the same facts, the plaintiff (who was the criminal defendant) may lose her civil case because of the lower standard of proof that she did not have consent or permission to take the money.  The eventual resolution of this matter may hinge upon the California Commercial Code.

Depending on what system a litigant finds themselves in, whether Civil or Criminal, a contrary result may arise out of the same set of facts.   Bear in mind the differing standards of proof between the two systems.  Is this fair?  Should we have the same Burden of Proof in both systems?  Should the “Burden of Proof” in one system be raised and the other system’s burden lowered?

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Transgender Rights: Does Government Need to be The Restroom Police?

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Our society continues to evolve in ways that social conservatives and traditionalists in this country cannot or will not comprehend.

The most recent and glaring examples are the legal actions taken by the states of Mississippi and North Carolina, in effect mandating that transgender persons do not exist. Laws in these states mandate that a person must use a public bathroom solely based on the gender that is listed on their birth certificate. This completely disregards the medical and surgical advances that have been made.

Gender changes are in all likelihood not undertaken lightly. The person who wishes to undergo this type of change has undergone tremendous psychological angst, pressure and has been the subject of ridicule or perceived mis-identification for many years.

If science can alleviate this problem, why should a person continue to be discriminated against by government? How would the Mississippi and North Carolina laws be enforced? Would there be a “checker” at bathroom requiring a person to lift their clothes to expose their “private parts” prior to using a restroom? Who would pay for this “service”? How degrading would this be people?

Doesn’t government have better things to do with resources than engage in this type of conduct? If our society is to be all inclusive, then why are we enacting laws to exclude and discriminate against people? Transgender rights has now emerged as the leading edge of the civil rights movement.

Our concept of legal rights has evolved. Sexual harassment has gone from male to female to female to female to man to man. Why stop the recognition of transgender people because of the quirk of being born of the “wrong gender” for them? The Catholic church has not yet embraced the transgender community, apparently stemming from the Biblical concept of what it means to be a man or a woman. However, the Bible was written at a time when transgender surgery did not exist.

In San Francisco a Catholic High School is not going to terminate a transgender teacher on this ground. Teachers are a profession that teaches students.

The sexual orientation of a teacher is irrelevant. If they can teach, they should have a job.

All male teachers are not ostracized if one of their number acts inappropriately with students. The same applies with female teachers. All persons should be judged on what they do, individually, and not on what others, similarly situated do.

Health insurance carriers are now beginning to recognize that transgender surgical and psychological procedures should be covered under health insurance policies. Transgender people want to carry on with their lives as everyone else does, free of governmental or societal ridicule, scorn and discrimination. Shouldn’t we now just get past this and, as Rodney King said, “why can’t we all just get along?”

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Why You Must Have an Estate Plan? Ask Prince

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With the recent death of the record artist Prince, it turns out that he did not have an estate plan. This was done when his estate was valued at over $250 million. In Prince’s case, many questions exist as to who gets the rights to his music. Millions are on the line in the form of royalties. Prince had no spouse or children. He has five half siblings and one sister. The primary beneficiaries of this failure to have a will be the State of Minnesota, the Federal government and (dare I say it) lawyers! There will be extensive litigation over this fortune. Whoever finally gets control of the estate, will pay hefty estate taxes. The taxes could have been minimized with planning. A trust or will could have been established which would have skipped generations and pay taxes far down the proverbial line. Why was this not done?

Many people refuse to deal with their own mortality. Even Abraham Lincoln died without a will. In California, you can make an estate plan all by yourself. A valid will can be done so long as it is entirely in your handwriting and is signed and dated by you. This is called a holographic will. What can you and I learn from this? The answer is simple: Make a Plan!

Wills can sort out many issues and give guidance. If you own a small business, who will take over if/when you die? If you have minor children (with or without special needs) who will care for them if you and your spouse die? You can have guardians for them established. A plan can keep our estate out of the court system. The American Bar Association estimates that $2 billion is spent in probate court. Of that total, nearly $1.5 billion is paid to lawyers.

Should you die without a will, the state where you die has a statutory plan to take care of your estate. This is called intestate succession. This may or may not mirror what you want. This may or may not have estate taxes paid the way you want. Guardians for minor children will be appointed if you do not have a plan in place for persons you want to assist your children. These people may or may not be the persons you want taking care of your children.

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Ensure that questions are answered so that lawyers do not get involved in sorting out what you may or may not have wanted.  Ease any pain for those you leave behind. When you go, go on your terms, from the financial sense.  The two things that are inevitable are death and taxes. Make sure you can control the tax part of your life and what happens after you leave, minimize the cost of your leaving, MAKE A PLAN!!!!

Chances are you worked very hard to make money and acquire things during your lifetime. Make sure that these things do not needlessly go to those whom you did not want them to go to.

What say you?

Did you have anyone in your family who passed without leaving behind a will?

Potpurri: CMA, John Wayne & ADA Violations

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The California Medical Association is seeking to join a lawsuit filed by the ACLU against a Catholic Hospital system over one of its facilities refusal on religious grounds to allow a doctor to perform a tubal ligation after a planned Cesarean section. The CMA claims it is illegal for Dignity Health hospital administration to intervene in the decision to tie a woman’s tubes after a C-section. The CMA feels that the doctor and the patient should make this decision, not hospital administrators. The CMA represents 41,000 doctors is asking a Northern California Court to issue an injunction barring the hospital from using religious directives to override the doctor patient relationship.  The doctors maintain that tying the tubes at the time of the c section is the ideal time for this procedure. In a battle of medicine versus religion, which takes precedent?

John Wayne, American Icon. Was he a racist? A proposal for a John Wayne Day was defeated largely because of his views on race. The view included the statement: “I believe in white supremacy until the blacks are educated to a point of responsibility. I don’t believe in giving authority and positions of leadership and judgment to irresponsible people.”   He further believed that whites could encroach on American Indians land who said that they “were selfishly trying to keep it for themselves”. We all realize that manifest destiny foretold of the Indians being sacrificed as the US expanded. However, should these views be celebrated? Should he be given here increased worship? If so, why? If not, why not? Who determines if people have reached the proper level of responsibility? What if there was a disagreement over the level, who makes the final call? Do we want blacks segregated to govern their “own kind”? What if the word black is changed to Asian, Latino, or Jew? Does this matter? Should it matter? As the Duke himself said: courage is being scared to death, but saddlin’ up anyway”. Has our society evolved that we have the courage to saddle up and repudiate these types of views?

California is using a common sense approach to allow small business to remedy ADA (Americans with Disabilities Act) violations within 120 days of notice, thus avoiding potential litigation for minor, technical violations. This would allow them to avoid predatory lawsuits by attorneys who seek damages for each violation. Many businesses do not have the resources to fight these suits and pay settlements in the thousands to avoid protracted litigation. Some businesses have closed rather than fight these battles. We need more businesses in California, not less.

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