Saturday, December 28, 2013

Preponderance of Evidence: What Does This Mean?



Tuesday, June 28, 2011


UPDATE-Preponderanceof evidence a term worth Repeating


This is a legal term worth repeating. And this particular post, please do pass on, since it relates to the amount of "Proof" needed, depending on the Court. I have taken the definition from our NFPCAR online Legal Definitions>> http://nfpcar.org/Legal/legalprint.htm I hope this helps, since, believe it or not, many lawyers aren't aware of the differences, but hopefully, we can ask a few questions to them to see if they are. (Related Power Point Presentation on Admin. Hearings>> FPLS-Administrative Law Presentation ) Plus other training>>http://www.examiner.com/foster-families-in-national/foster-parents-educational-resource-guide and http://www.foster-parents-legal-solutions.com/education.html )


Do you know the difference between:


*Preponderance of Evidence
*Clear and Convincing
*Beyond a Reasonable Doubt?
If Not, you better do your homework. Since depending on the court system, the level of proof depends on these terms.



I'm not a lawyer, but here are some basic "unlegal" thoughts, depending on the court system:
Administrative Hearing: By some only 51% proof needed..ie "If it could have happened, it probably did."
Family/Civil Court: To initially remove a child, usually little proof needed. However, for TPR to occur, proof must be "Clear and Convincing". which is a sliding scale between proof needed in Admin. Hearing, for example to "Beyond a Reasonable Doubt", depending on the judge.
Criminal Court: "It damn well better have happened!!"..ie "Beyond a Reasonable Doubt"


· For those who can remember the trials of OJ Simpson?? Every wonder why he won in Criminal Court, but lost in Civil Court??


So here is the definition for Preponderance of evidence:


Preponderance of evidence A standard of proof that must be met by a plaintiff if he or she is to win a civil action.


In a civil case, the plaintiff has the burden of proving the facts and claims asserted in the complaint. If the respondent, or defendant, files a counterclaim, the respondent will have the burden of proving that claim. When a party has the Burden of Proof, the party must present, through testimony and exhibits, enough evidence to support the claim. The amount of evidence required varies from claim to claim. For most civil claims, there are two different evidentiary standards: preponderance of the evidence, and clear and convincing evidence. A third standard, proof Beyond a Reasonable Doubt, is used in criminal cases and very few civil cases.


The quantum of evidence that constitutes a preponderance cannot be reduced to a simple formula. A preponderance of evidence has been described as just enough evidence to make it more likely than not that the fact the claimant seeks to prove is true. It is difficult to translate this definition and apply it to evidence in a case, but the definition serves as a helpful guide to judges and juries in determining whether a claimant has carried his or her burden of proof.


The majority of civil claims are subjected to a preponderance of evidence standard. If a court or legislature seeks to make a civil claim more difficult to prove, it may raise the evidentiary standard to one of clear and convincing evidence.


Under some circumstances use of the low preponderance of evidence standard may be a violation of constitutional rights. For example, if a state seeks to deprive natural parents of custody of their children, requiring only proof by a preponderance of evidence is a violation of the parents' due process rights (Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 [1982]). Freedom in matters of family life is a fundamental liberty interest, and the government cannot take it away with only a modest evidentiary standard. However, a court may use a preponderance of evidence standard when a mother seeks to establish that a certain man is the father of her child (Rivera v. Minnich, 483 U.S. 574, 107 S. Ct. 3001, 97 L. Ed. 2d 473 [1987]). Most states use the preponderance of evidence standard in these cases because they have an interest in ensuring that fathers support their children.
http://legal-dictionary.thefreedictionary.com/Preponderance+of+evidence(added 2/08-GPC)(Related Reading: Burden+of+Proof+Begone.pdf (added 8/09)


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Related Blog>>Preponderance of Evidence VS Clear and Convincing. What is better???
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Finally, here is the: Model State Legislation -Parental Due Process Act << I highly recommend that you pass this on to others, since it has many ideas on what is needed primarily in our Family Courts... We, as parents and/or any who care for children, must have our "Fair Day in Court". Please keep in mind, the judge makes their decision on "What Proof is presented" which may not be the Truth of the full story.
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