The Difference Between Preponderance of the Evidence Vs. Beyond a Reasonable Doubt

When we read books or watch television shows like Boston Legal, CSI, or Law & Order, to name a few, we frequently hear the phrase "burden of proof". This legal term refers to how much evidentiary proof the Prosecutor or Plaintiff needs before they can obtain a judgment or a verdict against the Defendant. Two of the most common "burdens" are the preponderance of the evidence and beyond a reasonable doubt. Burden of proof in Latin is, "Onus Probandi."

First of all, we need to understand that civil law and criminal law are vastly different. So much so that there is not enough room here to even begin to explain in depth. However, in civil law a private party (i.e., a corporation or individual person) can file a lawsuit and once the suit is filed they become the Plaintiff. In criminal law the case is always filed by the Government (i.e., District or City Attorney) who is then referred to as the Prosecution. In both instances the person that the Plaintiff or Prosecution has filed against is called the Defendant. This article will give a brief insight of both focusing on the criminal burden of proof.

The preponderance of the evidence is mainly used in civil cases (i.e., tort law cases), but it is also used in some criminal cases. It means "more likely than not". In simple terms, if it is 51% likely that the Defendant committed the alleged negligent act or created the breach of contract they are liable. Oftentimes the Court's jury in a civil trial is instructed to rule on behalf of the party that as a whole has the strongest evidence, however slight it may be.

With respect to criminal proceedings, this burden is sometimes used during hearings, such as in a California probation violation hearing. The reason that the standard of civil burden is used in a criminal hearing is because these hearings don't allow the criminal Defendant as much protection that criminal trials normally do. This means that in a California probation violation hearing the Prosecutor only has to prove that it is more likely than not that the Defendant violated their probation in order to find them guilty of the violation.

Proving a criminal case beyond a reasonable doubt is the typical criminal burden of proof...and is harder to define. It is difficult to put a valid numerical value on the probability that a guilty Defendant really committed the crime, but some legal scholars who do assign a numerical value generally say "at least 98% or 99%" certainty of guilt. It basically means that if there is no other logical or reasonable explanation other than the fact that the Defendant committed the alleged criminal act then they must be guilty. This is the burden that is exclusively used during criminal trials and it is California's highest burden of proof. The burden of proof is sometimes associated with the Latin maxim, "semper necessitas probandi incumbit ei qui agit." Translated this means: "the necessity of proof always lies with the person who lays charges." Don't misconstrue that phrase as assigning a specific timeline as it does not.

The burden of proof in a criminal case is always assigned to the Prosecution. In the United States a criminal Defendant is innocent until proven guilty - as guaranteed by the Fifth Amendment of the United States Constitution. Furthermore the burden of proof in criminal cases is much different for several reasons. For one, a Defendant in a criminal case often faces incarceration and the loss of many other civil liberties.

In criminal cases this burden of proof requires that the Prosecution's case and arguments demonstrate the Defendant's guilt for each element of the statutory crime beyond a reasonable doubt. There are two (2) general parts of a criminal case that the prosecution must prove beyond a reasonable doubt. First is that the Defendant committed all elements the criminal act(s) at issue. In Latin this is called, "actus reus." The burden of proof also requires that for each of these criminal acts the Prosecution prove the Defendant possessed a criminal intention called, "mens rea" in Latin.

Because the burden of proof rests on the prosecution, the defendant is not required to prove their innocence. From a defense standpoint, all the Defendant has to do is argue that the prosecution has failed to prove their case. The burden of proof in criminal cases is high and therefore provides some favor to the defendant in a case.