When I started this blog, I had a concept that I’d have a legal focus to it. I’m not a lawyer–my whole claim to legal education is a two-year paralegal degree from my local community college–but I was interested in the topic, I was looking for work in the field–I was even planning a comic centered on legal definitions. (I should re-start that last one, whenever I get better set-up for art again. A computer to call my own would be a good start.)
Now, most of these plans have fallen by the wayside, and in the last few years I’ve barely even read any legal decisions–something I actually find fun. (It was even why I decided to go for paralegal.) Just how the priorities shake out, I guess.
But… oh, I still have that barest understanding of a couple of basic concepts, and I see them messed up so often that it’s kind of frustrating. So let’s explore one of these–Burden of Proof.
Disclaimer: I’m not a lawyer, this is not legal advice, and I haven’t even been in school since 2011 nor worked in the field since 2015. You’ve been warned.
Why was OJ Simpson found not guilty of murder, but still found criminally liable for wrongful death?
This question is mentioned frequently as an example of the arbitrary and unjust nature of the criminal justice system. If a man killed his wife, he ought to go to jail for it; if he didn’t, then he oughtn’t have to pay restitution for the same. This in-between zone, this kind of guilty status is incomprehensible and unacceptable.
But the answer isn’t in how guilty he is or isn’t. It’s in how likely he is to be guilty. And the context for that question lies in burden of proof.
There are several different levels of burden of proof, depending on the circumstance and what you’re trying to do.
The burden most people are familiar with is Beyond a Reasonable Doubt. This is the standard of proof in criminal cases—where someone’s life or freedom is in jeopardy. Because the stakes are so high, we as a country basically decided that, if there’s any kind of reasonable chance that things didn’t happen in the way the prosecution said, if there’s a reasonable chance that the defendant didn’t fulfill every part of the definition of the crime with which he’s charged… he by right ought to go free. It’s not enough to think he’s guilty; you have to prove it conclusively.
(I keep using the word reasonable here. It’s important. It ties into the concept of the reasonable person standard—basically, what would a perfectly reasonable person do in that circumstance? It usually comes up in liability (how does what you actually did during the incident stack up to what the reasonable person would have done), but in this case, it’s whether a perfectly reasonable person would have cause to doubt the guilt of the party. As in everything law-related, there’s a lot of argument focused around the precise limits of “reasonable.”)
So that’s the burden of proof for conviction in a criminal action. What are some of the others?
Preponderance of the evidence is used in civil cases—personal injury, breach of contract, things like that. Basically, because the life and freedom of a man isn’t at issue, only his money, we feel as though it’s not necessary to prove everything quite so conclusively as above. This standard means that the respondent is more likely than not to be liable for the action.
(I’m using different terms here on purpose—civil law uses different language than criminal law. The parties in civil law are the petitioner or plaintiff and the respondent; the trial is to determine whether or not the respondent is liable, rather than guilty. This is because civil law really is different than criminal law.)
So when you’re trying to figure out whether to award damages and to whom in a civil case, you’re not trying to weigh whether there’s any way at all in which the accused may not be liable; you’re just weighing whether it’s more likely that he’s liable or he isn’t. It’s a much easier standard.
All right, so we’ve got the burden of proof for civil and criminal trial; what else could there be? There’s two big ones.
First is probable cause. This standard comes into play long before any trial even begins; it’s the standard that the police officer uses when deciding whether or not to arrest you, or the judge uses when deciding whether to issue a search warrant. Then it’s used again by the grand jury when deciding whether or not there should be a trial.
As a result, this is a much lighter burden than either of the trial standards. It means that a reasonable person would come to the conclusion that the person had probably committed the crime, or that the evidence would probably be found during a search. What it means more specifically? Well, I think it likely that there’s more written on that subject than almost any other in American law.
And then, finally, is reasonable suspicion. This is less than probable cause, but more than a hunch, and it’s only used for what’s called a Terry stop—basically, a brief search conducted by an officer when they think that you might be armed and dangerous. I didn’t get as good of a sense as this one as I’d like. In any case, it’s the least burden of proof I’m aware of.
And that’s our lesson on Burden of Proof! Join us in the future for “Isn’t the appeals system just ordering trials until you get the result you want?” (no), “Is something really illegal if there’s no federal law against it?” (yes), and “Shouldn’t you be working on your next book?” (don’t remind me).
And here is a sketch of one of the villains in my WIP.