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David Mittleman
David Mittleman
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Preponderance of the Evidence

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Just over two weeks ago, the jury in the Casey Anthony murder trial returned a “not guilty” verdict on the most severe charges against the accused. Though much of the public was outraged, the general consensus in the legal community was that the prosecution had simply failed to meet its burden of proving its case “beyond a reasonable doubt.” The Anthony case is not the first – or even the most famous – controversial trial to hinge on the issue of reasonable doubt. The O.J. Simpson murder trial dealt with many of the same legal concepts. Simpson was found not guilty of murder in October 1995 and, because of the 5th Amendment’s provision barring double jeopardy, could never again face a criminal trial on those charges.

In 1996, however, O.J. Simpson was sued in civil court by Fred Goldman, the father of one of the alleged victims. In early 2007, a jury unanimously decided that Simpson was liable for the battery and wrongful death of Nicole Brown Simpson and Ronald Goldman. What explains the difference in the verdicts? More than anything else, the difference was the burden of proof.

In a criminal case, the prosecution must prove its case against the accused beyond a reasonable doubt. In most civil suits, however, the plaintiff need only show the necessary elements by a “preponderance of the evidence.” In laymen’s terms, this means “more likely than not” or even the tiniest fraction more than 50%. In Michigan, jurors are given some form of the following instruction:

I [the judge] have just listed for you the propositions on which the plaintiff has the burden of proof. For the plaintiff to satisfy this burden, the evidence must persuade you that it is more likely than not that the proposition is true.

You must consider all the evidence regardless of which party produced it.

The burden in a civil lawsuit is much, much lower than in a criminal trial. Many potential jurors struggle with the difference, and it can be a key issue in the jury selection process. The basis for the disparity is that in criminal cases, the life and liberty of the accused is in jeopardy, while in civil cases only money is at stake. It is important to remember this key difference between our criminal and civil system – it is the difference between justice and fundamentally unfair results.