Page 20 - October 2018 FOP Magazine

Burdens of proof
It is almost impossible to turn on the news today without hearing the phrase “burden of proof” be-
ing tossed around on a regular basis. Whether
it’s the Senate Judiciary confirmation hearings
The burden of proof often is said to consist of two distinct but related concepts: the burden of production and the burden of persuasion. Depending on the type of action, three main le- gal standards exist. A standard is simply a measuring point and is determined by considering both the quantity and
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or any pending civil or criminal litigation, the talking heads often spend countless hours ar- guing whether one side can prove its case or defend itself from the underlying allegations.
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quality of all evidence presented in a particular case.
Reasonable doubt
In the arbitration context, as Lodge attorneys preparing for a discipline hearing, we often must explain to grievant officers what the phrase “just cause” means and who has the burden to establish whether disciplinary action
against an officer was justified.
It might be helpful to review some of these concepts and terms. Generally, the term “burden of proof” in the litigation context
describes the standard that a party seeking to prove a fact (or po- sition) must satisfy in order to have that fact (or position) legally established. The ultimate decision as to whether a plaintiff has met the burden of proof rests with the fact finder: a judge, jury or arbi- trator.
There are different standards in different circumstances. Bur- dens of proof vary, depending on the type of case being tried. For example, in criminal cases, the burden of proving the defendant’s guilt is on the prosecution or government, who must establish that fact beyond a reasonable doubt. In civil cases, the plaintiff has the burden of proving a case by a preponderance of the evidence. The “preponderance of the evidence” and “beyond a reasonable doubt” burdens are different standards, requiring different amounts of proof.
The highest or most challenging standard is “reasonable doubt.” This heightened or strictest standard of proof is used in criminal trials to find a defendant guilty of a crime. When a crim- inal defendant is prosecuted, the prosecutor must prove the de- fendant’s guilt “beyond a reasonable doubt.” A reasonable doubt exists when a judge or juror “cannot say with moral certainty that a person is guilty.” This standard requires at least 95 percent confi-
dence that the facts support a guilty verdict.
Clear and convincing
The next standard is the “clear and convincing” burden of proof. “Clear and convincing” means that the evidence is highly and sub- stantially more likely to be true than untrue; the fact-finder must be convinced that the contention is highly probable. In terms of percentages, the standard requires at least 70 to 75 percent confi- dence that the facts support the decision. In the descending scale of proofs, this is a medium level burden of proof, which requires the party alleging the contention must prove that the contention is substantially more likely than not that it is true. This standard is employed in civil and some criminal trials.
Preponderance of the evidence
The lowest burden of proof on the spectrum is the “preponder- ance of the evidence” standard. Simply stated, the burden requires
Labor Report
20 CHICAGO LODGE 7 ■ OCTOBER 2018