A “preponderance of the evidence” is evidence that shows that it is more likely than not that a fact is true. In other words, it is more than 50 percent likely that a fact is true.
The preponderance of the evidence standard – which most jurisdictions apply in personal injury cases and other civil matters – is a lower standard of proof than both:
- “clear and convincing” evidence, which is used in some civil cases and certain phases of criminal court cases; and
- “beyond a reasonable doubt” – the highest standard of proof – which prosecutors must meet to convict a defendant in a criminal trial.
In all civil and criminal cases, the presiding judge provides instructions to the jury informing them which standard of proof applies to the matter.
Our California personal injury attorneys will highlight the following in this article:
- 1. What is “preponderance of the evidence”?
- 2. Are there other burdens of proof?
- 3. How do I know what standard applies?
- 4. What is the law in California?
A “preponderance of the evidence” is evidence that shows that it is more likely than not that a fact is true.
1. What is “preponderance of the evidence”?
The “preponderance of the evidence standard” is the standard of proof in many civil cases/civil trials where the plaintiff has to show that it is more likely than not that a fact is true.1
Most jurisdictions say that “more likely than not” means that it is more than 50 percent likely that a fact is true.
A preponderance of the evidence standard applies in most civil cases, including those involving a
- personal injury and
- violations of civil liberty.
This burden of persuasion is a lower burden than both the:
- clear and convincing standard, and
- beyond a reasonable doubt standard.
2. Are there other burdens of proof?
Three other burdens of proof are used in the legal system/legal process. The three standards include:
- clear and convincing evidence,
- substantial evidence, and
- beyond a reasonable doubt.
Clear and convincing evidence
Plaintiffs will satisfy this standard by presenting enough evidence that shows that it is highly probable that a fact is true.
In other words, a fact-finder (or a judge or jury) must be able to use the evidence presented to determine that it is highly and substantially more likely that a particular fact is true rather than untrue.2
Jurisdictions differ in terms of the type of case or legal proceeding this standard applies to. Typically, though, parties will have to meet this burden in civil cases involving:
- fraud,
- restraining orders,
- the probate of wills,
- withdrawing life support, and
- conservatorships.3
Clear and convincing proof is a higher standard of proof when compared to the preponderance of the evidence standard.
Substantial evidence
Substantial evidence is the burden where a party must provide an amount of evidence that will lead a reasonable mind to accept the evidence as adequate to support a conclusion. The standard requires more than a mere scintilla of evidence.4
This standard is often used in administrative hearings. During an administrative hearing, a judge reviews the decision made by a government agency.
The reviewing court will uphold an agency’s decision so long as, after a review of the whole record, there is substantial evidence upon which the agency could reasonably base its decision.5
A preponderance of the evidence is a higher standard than the substantial evidence rule.
However, a greater weight of the evidence is needed to show substantial evidence compared to a probable cause finding.
“Probable cause” is a requirement under the Fourth Amendment. Police usually must find probable cause before they:
- make an arrest,
- conduct a search, or
- receive a warrant.6
Courts and police usually find probable cause when they find a reasonable basis for believing that a crime may have been committed.
Beyond a reasonable doubt
Beyond a reasonable doubt is the standard of proof in criminal cases. The burden is the highest evidentiary standard used in the legal process.
Under the criminal laws of every state, prosecutors must prove that a defendant committed a crime, beyond a reasonable doubt, to show the defendant’s guilt.7
To meet this burden, most states say a prosecutor must present evidence so convincing of guilt that there is no question in the jurors’ mindsthat the defendant committed the crime charged.
Courts sometimes say that a defendant is proven guilty once a prosecutor can show, to a moral certainty, that the defendant committed a crime.8
But these courts also say that the standard does not require a prosecutor to show, to an absolute certainty, that the accused committed an offense.9
3. How do I know what standard applies?
If a person files a lawsuit, then it is usually best for that party to consult with an attorney to determine what evidentiary burden applies to his/her case.
Most lawyers provide free consultations so people can typically learn the basics of their cases without spending any money.
People can also learn what standard applies to their case by conducting research online or in a law library. However, it’s usually best to speak with an experienced lawyer.
Note that if a person is a juror in a civil or criminal case, a judge will instruct him/her on what standard applies to the matter.
4. What is the law in California?
California law generally follows the discussion set forth above.
The preponderance of the evidence test is most often used in California personal injury cases.
A plaintiff satisfies this burden when he/she proves that it is more likely than not that a fact is true.10
Put another way, the standard requires a jury or judge to believe that the existence of a fact is more probable than its nonexistence.11
Note that judges apply a clear and convincing test in California personal injury cases where the plaintiff seeks punitive damages in addition to compensatory damages.
Note, too, that under California law, “beyond a reasonable doubt” is defined as follows:
“It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”12
Legal References:
- Black’s Law Dictionary, Sixth Edition – “Preponderance of the Evidence.” See also Braud v. Kinchen, 310 So.2d 657 (1975). See also Andrus v. Texas, 140 S. Ct. 1875 (2020).
- See, for example, the Supreme Court case of Colorado v. New Mexico, 467 U.S. 310 (1984).
- See, for example, Conservatorship of Wendland, 26 Cal.4 519 (2001); and, Santosky v. Kramer, 455 U.S. 745 (1982).
- Richardson v. Perales, 402 U.S. 389 (1971).
- Black’s Law Dictionary, Sixth Edition – “Substantial Evidence Rule.” See also Marshall v. Consumers Power Co., 237 N.W.2d 266 (1975).
- See, for example, U.S. v. Riemer, 392 F.Supp. 1291 (1975).
- See, for example, People v. Potts, 6 Cal. 5th 1012 (2019).
- See Black’s Law Dictionary, Sixth Edition – “Beyond a Reasonable Doubt.”
- United States v. Ashrafkhan, 964 F.3d 574 (2020).
- California Evidence Code section 115. See also Weiner v. Fleischman, 54 Cal.3d 476 (1991).
- In re Angelia P. (1981) 28 Cal.3d 908. See also California Civil Jury Instructions (CACI) 200.
- California Penal Code 1096 PC.
