Standards of Proof
Every one has heard of the phrase “proof beyond a reasonable doubt.” But there are three primary standards of proof: preponderance of evidence; clear and convincing evidence; and reasonable doubt.
Black’s Law Dictionary (8th Ed. 1990) provides the definitions of each in order of importance:
• Preponderance of the Evidence: the greater weight of evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
• Clear and convincing evidence: Evidence indicating that the thing to be proved is highly probable or probably certain. This is a greater burden than preponderance of the evidence, the standard applied in most civil trials, but less than evidence beyond a reasonable doubt, the normal in criminal trials.
• Reasonable doubt: The doubt that prevents one from being firmly convinced of a defendant’s guilt, or the belief that there is a real possibility that the defendant is not guilty. ‘Beyond a reasonable doubt’ is the standard used by a jury to determine whether a criminal defendant is guilty. In determining whether guilt has been proved beyond a reasonable doubt, the jury must begin with the presumption that the defendant is innocent.
While the first two standards of proof are more commonly associated with civil trials and administrative proceedings, they do have their place in criminal proceedings relating to evidentiary rulings. For example, a criminal defendant bears the burden of proving incompetency to stand trial by a preponderance of the evidence. See: Meraz v. State, 714 S.W.2d 108 (Tex.App.-El Paso 1986, pet. ref’d 1990).
Further, the Texas Court of Criminal Appeals has established that the “clear and convincing evidence” test must be utilized on appeal to determine whether a criminal defendant’s consent to search was voluntary. See: State v. Ibarra, 953 S.W.2d 242 (Tex.Crim.App. 1997).
But the holy grail of standards of proof in criminal cases is reasonable doubt. The Due Process Clause of the Fifth Amendment to the United States Constitution requires a prosecutor to prove beyond a reasonable doubt every element of the offense charged. See: In re Winship, 397 U.S. 358, 364 (1970). See also: Fiore v. White, 531 U.S. 225, 228-29 (2001) [due process violated in an operating a facility without a permit case where prosecution failed to show the defendant did not possess a hazardous waste permit].
Fifty-six years ago Mr. Justice Frankfurter stated that “it is the duty of the Government to establish … guilt beyond a reasonable doubt. This notion—basic in our law and rightly one of the boasts of a free society—is a requirement and safeguard of due process of law in the historic, procedural context of ‘due process’.” See: Leland v. Oregon, 343 U.S. 790, 802-03 (1952) [dissenting opinion].
In yet another case, the Supreme Court observed that “guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights in our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.” See: Brinegar v. United States, 338 U.S. 160, 174 (1959).
The Supreme Court in Winship recognized that the reasonable doubt standard protects three fundamental interests. First, it protects the defendant’s interest in liberty; second, it protects an innocent person charged with a crime from the stigma of conviction; and, third, it engenders public confidence in criminal law by giving “concrete substance” to the constitutional presumption of innocence. Id., 397 U.S. at 363-64.
In a concurring opinion in Winship, Justice Harlan pointed out that the reasonable doubt standard is “bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” Id., 397 U.S. at 372.
The courts have established that the reasonable doubt standard consists of two parts: the burden of production and the burden of persuasion. The first part imposes a burden on the prosecution to produce sufficient evidence to put a fact in issue. For example, this burden demands that the prosecution establish every element of the offense charged. If the prosecution fails to satisfy this burden (not bringing the fact into issue), the judge may direct a verdict of acquittal. The second part of the standard requires the prosecution to persuade the jury (or a judge in a non-jury trial) that a fact issue, such as the element of a crime, must be decided in a certain way. This part imposes on the prosecution the burden of persuading the jury that it has established every element of the offense charged beyond a reasonable doubt– and very rarely does this burden ever shift to a criminal defendant, and if it does, the burden-shifting process must withstand constitutional scrutiny. See: 38 Geo.L.J.Ann.Rev.Crim.Proc. (2008), p. 652 n. 1999. See also: Patterson v. New York, 432 U.S. 197, 201 (1977) [requirement that defendant prove affirmative defense of “heat of passion” by preponderance of evidence did not unconstitutionally shift burden of persuasion].
The following convictions were reversed under the Winship due process rationale:
• Prosecution’s failure to prove beyond a reasonable doubt that defendant purchased property using proceeds from specified unlawful activity required reversal of convictions for engaging in transactions in criminally derived property. See: United States v. Carucci, 364 F.3d 339, 343 (1st Cir. 2004).
• Prosecution’s failure to prove beyond a reasonable doubt that defendant had intent to harm required reversal of mail fraud conviction. See: United States v. Novak, 443 F.3d 150, 159 (2d Cir. 2006).
• Prosecution’s failure to prove jurisdictional element beyond a reasonable doubt required reversal of conviction for aiding and abetting use of explosive to destroy property affecting interstate commerce. See: United States v. McGuire, 178 F.3d 203, 205-11 (3d Cir.1999).
• Prosecution’s failure to prove beyond a reasonable doubt that defendants knew their conduct violated law required reversal of convictions for illegal structuring of financial transactions. See: United States v. Ismail, 97 F.3d 50, 59 (4th Cir. 1996).
• Prosecution’s failure to prove beyond a reasonable doubt that defendant had design to conceal required reversal of international money laundering conviction. See: United States v. Cuellar, 441 F.3d 329, 334 (5th Cir. 2006).
• Prosecution’s failure to prove beyond reasonable doubt that defendant was perpetrator of assault required reversal of conviction for assault with intent to murder. See: McKenzie v. Smith, 326 F.3d 721, 728 (6th Cir. 2003).
• Prosecution’s failure to prove beyond a reasonable doubt felon status of defendant required reversal of conviction for felon in possession of a firearm. See: United States v. Allen, 383 F.3d 644, 649 (7th Cir. 2004).
• Prosecution’s failure to prove beyond a reasonable doubt codefendant’s constructive possession required reversal of conviction for possession of methamphetamine with intent to distribute. See: United States v. Schofield, 433 F.3d 580, 586-87 (8th Cir. 2006).
• Prosecution’s failure to prove beyond a reasonable doubt that defendant caused death of 7-week-old grandson required reversal of conviction for assault on child resulting in death. See: Smith v. Mitchell, 437 F.3d 884, 889-90 (9th Cir. 2006).
• Prosecution’s failure to prove beyond a reasonable doubt that defendant knew or had reasonable cause to believe that pseudoephedrine and ephedrine he sold would be used to manufacture methamphetamine required reversal of drug convictions. See: United States v. Truong, 425 F.3d 1282, 1291 (10th Cir. 2005).
• Prosecution’s failure to prove beyond reasonable doubt design to conceal and conspiracy to commit money laundering required reversal of convictions. See: United States v. Johnson, 440 F.3d 1286, 1295-96 (11th Cir. 2006).
• Prosecution’s failure to prove beyond a reasonable doubt that defendant was coconspirator or aider and abettor required reversal of his conviction for conspiracy to kill witness. See: United States v. Wilson, 160 F.3d 732, 737-39 (D.C.Cir. 1998).
See: 37 Geo.L.J.Ann.Rev.Crim.Proc. (2008), p. 653, n. 2001.
A criminal defense attorney should address early in voir dire the differences in the three standards of proof. The attorney should specifically make sure that he or she points out to prospective jurors the following fundamental principles relative to the heightened “reasonable doubt” standard. First, the three primary interests served by the standard. Second, Justice Harlan’s time-honored observation that it is far worse to convict an innocent man than to let a guilty man go free. Third, the prosecution must carry two basic burdens: the prosecutor must produce evidence of guilt on every element of the offense charged and then persuade the jury beyond a reasonable that the defendant violated each and every one of those elements. Fourth, the attorney must emphasize the fallibility of eyewitness identification and the impact of DNA exonerations on the nation’s criminal justice system, pointing to the staggering number of DNA exonerations and wrongful convictions obtained through “mistaken identification. Finally, a defense lawyer should validate the importance of individual juror independence, integrity and courage to listen and weigh the evidence based solely on the juror’s obligation to respect the presumption of innocence and the duty not to convict when there is a reasonable doubt about guilt.
A defense attorney cannot presume the prospective jurors understand these basic principles. The attorney must “tell them, and tell them again that you told them.”
ABOUT THE AUTHOR: Mr. John Floyd and Mr. Billy Sinclair
Houston Criminal Attorney John Floyd has been rated as among the best and brightest attorneys practicing criminal law and has been recognized as one of Houston’s Top Lawyers for the People (2008,2009), Top Lawyers: Criminal Defense (2008) and has earned a “Superb” rating, scoring 10/10, from AVVO. He has appeared on national television and radio programs as an expert on criminal law related issues and has been quoted in newspapers and other news outlets throughout the country.
Billy Sinclair is senior paralegal for the john T. floyd law Firm. He was the recipient of a host of prestigious journalism awards, including the George Polk, Sidney Hillman, and Robert F. Kennedy Award for Special Journalism, and the American Bar Association’s Silver Gavel awards.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.