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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?

What say you?