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>> 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>> and )

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 "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!!" "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. 2/08-GPC)(Related Reading: Burden+of+Proof+Begone.pdf (added 8/09)

Related Blog>>Preponderance of Evidence VS Clear and Convincing. What is better???
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.

Sunday, December 15, 2013


Cary HERSHKOWITZ, Plaintiff-Respondent, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant-Appellant.
-- May 27, 2008


Michael A. Cardozo, Corporation Counsel, New York (Karen M. Griffin of counsel), for appellant.Wolf & Wolf, LLP, Bronx (Edward H. Wolf of counsel), for respondent.

Order, Supreme Court, New York County (Karen S. Smith, J.), entered January 8, 2007, which, to the extent appealed from as limited by the briefs, denied defendant the New York City Department of Education's (DOE) motion to dismiss the complaint pursuant to CPLR 3211(a)(7), unanimously reversed, on the law, without costs, and the motion granted.   The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

In 1999, DOE commenced a disciplinary proceeding pursuant to Education Law § 3020-a, charging plaintiff, a tenured teacher, with 12 specifications of sexual misconduct and other inappropriate interactions with respect to several students.   Plaintiff moved to suppress his written confession, in which he admitted to sending “many” instant messages to a female student explicitly discussing and soliciting various sexual acts.   The hearing officer suppressed the statement as violative of the collective bargaining agreement between DOE and the United Federation of Teachers (UFT), and thereafter dismissed all the charges against plaintiff and ordered him reinstated.   Supreme Court vacated the determination and directed a new hearing, at which the written statement was to be considered;  we affirmed (Board of Educ. of City of N.Y. v. Hershkowitz, 308 A.D.2d 334, 764 N.Y.S.2d 254 [2003], lv. dismissed 2 N.Y.3d 759, 778 N.Y.S.2d 776, 811 N.E.2d 38 [2004] ).

Following the new hearing, at which the written statement was admitted and plaintiff declined to testify, the hearing officer sustained six of the charges, and as a penalty imposed a one-year suspension without pay.   DOE commenced a special proceeding pursuant to CPLR article 75 and Education Law § 3020-a, challenging the penalty as inadequate.   Supreme Court granted DOE's petition to the extent of remanding for a new hearing before a different hearing officer.   A reading of the detailed, 15-page decision reveals that Supreme Court upheld the factual determination that plaintiff was guilty of the six sustained charges and remanded only on the issue of the penalty.   Supreme Court ruled that the penalty of a one-year suspension was “totally irrational” and “against New York's strong public policy of protecting children,” in that it:

“not only defies logic given the seriousness of [plaintiff's] admitted sexual misconduct ․, but it is offensive to the disciplinary process negotiated by [DOE] and [UFT]. Indeed, to suspend [plaintiff] for one year actually tells him and everybody else that these perverted and insidious acts are not serious.   Importantly, it also tells [the female student] and her mother that [the student's] resolve and her mother's courage used in withstanding and reporting [plaintiff's] persistent and improper advances were for naught.   In fact, [the student's] resolve is being used against her by those responsible for ensuring her safety as an attempt to minimize the heinous nature of [plaintiff's] acts ․ [T]his Court chooses to call this teacher's acts for what they are-an abuse of trust of the most serious kind ․

“To be sure, the fact that physical contact apparently did not occur here ․ is a tribute to the student's resolve, not [plaintiff's] exercise of restraint.   For his part, it is clear that he tried ․

“Last, considering the seriousness of [plaintiff's] conduct, a one year suspension is not justified by the fact that [he] had a clean record prior to this incident ․ He not only tried extremely hard to seduce [the student] into a clandestine and inappropriate relationship, but systematically dismantled the systems a parent puts in place to protect her daughter, namely honesty and open communication.”

The new hearing officer misconstrued the order as directing a de novo hearing on the merits of the charges as well as the appropriate penalty.   The parties relied on the record established at the prior hearings, and the hearing officer found plaintiff culpable of the same six charges previously sustained, and directed him to be dismissed from service.

Thereafter, plaintiff commenced this action to recover back pay and benefits for the period of time between the award suspending him for one year, which was annulled, and the final order terminating his employment.

The complaint should be dismissed for failure to state a cause of action, since the matter was remanded solely for a redetermination of the penalty and plaintiff ultimately received a harsher penalty (see Matter of Lugo v. City of Newburgh, 209 A.D.2d 414, 618 N.Y.S.2d 420 [1994];  Matter of DeMartino v. Meehan, 149 A.D.2d 703, 704-705, 540 N.Y.S.2d 500 [1989] ).   The fact that the second hearing officer erroneously believed that he was to make a redetermination as to the charges is immaterial.