New York Lawyer Advertising Rules and TV, Part 3
Prosecutorial Indiscretion

Define That Term #189

Tuesday's term was preponderance of the evidence standard, which is defined as:

n. the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other. This preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses with hazy testimony, or a signed agreement with definite terms may outweigh opinions or speculation about what the parties intended. Preponderance of the evidence is required in a civil case and is contrasted with "beyond a reasonable doubt," which is the more severe test of evidence required to convict in a criminal trial. No matter what the definition stated in various legal opinions, the meaning is somewhat subjective. See also: evidence.

Slickdpdx and Carlos both guessed, and I'm accepting both guesses as correct.

In keeping with the current evidentiary standard of proof theme, today's term is:

beyond a reasonable doubt.

Creative examples of this standard of proof will garner bonus points.

Good luck and no dictionaries, please.


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Not a speculative doubt but an actual doubt that a reasonable person would have based on the evidence or lack of evidence.

Scott Greenfield

This was the subject of a fascinating discussion by Judge Winter, then chief judge of the second circuit, who essentially wrote that it's a phrase used all the time that no one, including him, was able to define.

A number of defense and prosecution associations have attempted to arrive at a definition, as well as legislative committees during the CJI revisions, have sought to come up with a viable explanation of the phrase so that juries could be properly instructed. Every attempt failed.

slickdpdx tries to define it as "Not a speculative doubt but an actual doubt that a reasonable person would have based on the evidence or lack of evidence." But does that phrase, inherently problematic since it uses the operative word, reasonable, in the definition, capture the essence?

Indeed, the jury is supposed to speculate to some extent about whether there are explanations other than guilt that accomodate the proven facts. Sometimes this speculation deals with ordinary possibilities, and other times with extraordinary possibilities.

For example, now often would it happen that someone remarkably similar in appearance would be in the same area as a defendant, wearing similar clothing, and inclined to commit a crime for which a defendant is arrested? Not too often, you say. But is it that farfetched or unreasonable?

The burden of proof is intended to preclude a jury from convicting unless they are convinced by proof, whether affirmative or negative, that such a potential explanation could not be possible.

The instruction often given a jury is that they must use the same level of doubt that they would use in making an important decision in their own lives. Sounds good? Well, how do we know whether any individual juror makes poor choices based on little evidence, or even bald assumptions, on important decisions in his/her own life? Hey, people take action based on little or no thought all the time. That's what makes the world go round. So we're telling juries that if they jump to baseless conclusions in their own lives, they should do so in the courtroom as well. Is that the definition?

Second problem is arriving at a definition that can be communicated orally to a group of people with a presumptive third grade education and grasp of language. Anyone who has had the pleasure of chatting with a jury after a trial will tell you that the disparity between what was said in the courtroom and what they heard is shocking. If a jury gets the point 50% of the time, you're doing incredibly well.

So what's the definition of "beyond a reasonable doubt?" Beats the hell out of me.

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