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Preponderance of Evidence vs Reasonable Doubt

June 23, 2020 Federal Criminal Attorneys

“Burden of proof” is an important legal concept. In a civil lawsuit the plaintiff, who started the lawsuit, usually bears the burden of proving by a preponderance of evidence every element of the claim against the defendant; if the plaintiff fails to meet that burden with respect to any necessary fact, then the defendant is entitled to dismissal of the lawsuit. In a criminal proceeding the prosecution bears the burden of proving beyond a reasonable doubt every element of the charge against the defendant; if the prosecution fails to meet that burden, then the defendant is found not guilty. “Preponderance of evidence” and “reasonable doubt” are very different burdens of proof, and it is much easier to prove a fact by a preponderance of evidence than it is to prove a fact beyond a reasonable doubt.

The generally accepted definition of “preponderance of evidence” is that a fact is more likely than not true; if a party convinces the jury (or, if there is no jury, the judge) that a fact is more likely than not true based on all of the evidence, then that party has proven the fact by a preponderance of evidence. A party cannot meet this burden by proving that a fact might be true or could be true, but only by demonstrating that the fact is probably true.

To help them understand what “preponderance of evidence” means, jurors are sometimes told to visualize the scales of justice. If the scales are tipped to any degree, however slight, in favor of the party that bears the burden of proving a fact by a preponderance of evidence, then that party has met the burden of proving that fact. If, on the other hand, the scales are hanging evenly or are tipped in favor of the party that does not have the burden of proof, then the fact in question has not been proven by a preponderance of evidence.

A common definition of “reasonable doubt” is an honest and reasonable uncertainty about the guilt of the defendant based on full and impartial consideration of all of the evidence. A reasonable doubt can arise based on the evidence that the parties present or based on a lack of convincing evidence of guilt. Proof beyond a reasonable doubt need not be strong enough to create absolute certainty about the defendant’s guilt, but only to firmly convince the jurors (or, if there is no jury, the judge) that the prosecution has proven every necessary fact and that the defendant is guilty.

Some legal scholars have tried to use percentages to explain the difference between proof by a preponderance of evidence and proof beyond a reasonable doubt. While use of percentages makes sense to define proof by a preponderance of evidence, it is difficult to use percentages to define proof beyond a reasonable doubt.

If the plaintiff in a civil lawsuit has proven that the probability or likelihood that a fact is true exceeds fifty percent (50%), then the plaintiff has proven that fact by a preponderance of evidence. That explanation is entirely consistent with the generally accepted definition of “preponderance of evidence” and with the instructions that judges routinely give to jurors in civil trials, which are described above.

Legal scholars have reached differing conclusions about what percentage properly explains proof beyond a reasonable doubt. Some authorities have suggested that the defendant’s guilt has been proven beyond a reasonable doubt if the prosecution has proven that it is more than ninety percent (90%) likely that the defendant is guilty. Other commentators have used higher percentages, such as ninety-five percent (95%) or even ninety-nine (99%) percent. Judges do not use percentages to explain to jurors what “reasonable doubt” means.

Civil lawsuits are generally about money; if the plaintiff wins, then the defendant will either be required to pay the plaintiff money or expend resources to take other action. Criminal convictions, on the other hand, will result in significant deprivations of liberty (including prison or jail time) and loss of important rights and privileges (such as the right to vote or the privilege of driving). That difference explains why the burden of proof is lower in civil lawsuits than in criminal proceedings.

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