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Showing posts with label BURDEN OF PROOF. Show all posts
Showing posts with label BURDEN OF PROOF. Show all posts

Saturday, July 18, 2015




Sunday, August 4, 2013


Whenever you go to family court for a hearing, it is important to ask your attorney what is the burden of proof that the judge expects you to meet in order to win your case.  Different issues you bring before the Court require different standards of proof, and if you know what those standards are, it will be easier for you as a litigant to understand why the judge reached a particular conclusion.  It will also be easier to know what documentary evidence you need to provide to your attorney in order to achieve good results. 
There are two cases that immediately come to mind for me when I consider the issue of burden of proof.  The first is Fish v. Fish S.C. 17500 where the primary question for the Supreme Court was what burden of proof did the Plaintiff have to meet in establishing that the Defendant was not a fit parent so as to justify denying him parental rights.  Did it have to be the standard of clear and convincing evidence as determined in Roth v. Weston, 259 Conn. 202, 234-235 or did it merely have to be that of the best interests of the child standard as delineated in Connecticut General Statutes 46b-56b.

In this case, since custody was handed over to a third party who was not a parent, the Supreme Court determined that the standard must be one of the fair preponderance of the evidence.  Since both the Trial Court and the Appellate Courts in this case wrongly based their determinations on the "best interests of the child" standard, rather than the standard of "Fair Preponderance of the Evidence", their decisions were overturned.
The second case is the Joe Watley case where Joe and Karin lost their parental rights to their children based upon the doctrine of "predictive neglect."  The Supreme Court determined that the burden of proof which the Department of Children and Families used, that of "potential risk"--a 10% risk--was too low to act as the basis for denying citizens their right to parent.  Instead, the Supreme Court determined that DCF must use the standard of "more likely than not" or the standard of finding by the "preponderance of the evidence.

There are four standards of proof that are generally significant in court.  I mean, there are some fairly offbeat standards such as "scintilla of proof" which I am sure have some legal significance on rare occasions, but what is important to this article are those you will meet regularly when you go to family court.  These four are as follows:

Probable Cause:  This is a relatively low standard of evidence, which is used in the United States to determine whether a search, or an arrest is warranted.  It is also used by grand juries to determine whether to issue an indictment.  This is the standard often used to obtain a prejudgment remedy.  This is relevant if you have filed a civil case in connection to your family court case in regard to abuse or financial wrongdoing for which you hope to obtain a prejudgment remedy.  Probable cause requires a fair probability that contraband or evidence of a crime will be found.  Courts vary when determining what constitutes a "fair probability", some saying 30%, others 40%, and others 50%.  This is the standard of proof you need to meet in order to win during an Oneglia hearing.

Preponderance of the Evidence:  Evidence that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.  This standard is also known as the balance of probabilities, i.e. "more probable than not" and is the burden of proof required in some civil trials.  The standard is met if the proposition is more likely to be true than not true, or to put it another way, if there greater than 50% chance that the proposition is true.

For those who have been following the tragic Trayvon Martin case the preponderance of the evidence is the standard of proof used for immunity from prosecution to be granted under Florida's controversial "stand-your-ground" law.

For information on how the Connecticut Judicial Branch defines this standard, please click on the link below:

Clear and Convincing Evidence:  Clear and convincing evidence means "a firm belief or conviction" that an event has occurred.  It is the intermediate level of burden of proof sometimes employed in the civil court.  In order to prove something by "clear and convincing evidence" the party with the burden of proof must convince the trier of fact that it is substantially more likely than not that the thing is in fact true. 

This is a lessor requirement than "proof beyond a reasonable doubt" which requires that the trier of fact be all but certain of the truth of the matter asserted, but a stricter requirement than proof by "preponderance of the evidence," which merely requires that the matter asserted seem more likely true than not. 

Further, this standard is used in many types of cases including civil liberty cases, the probate of both wills and living wills, and of interest to those who deal with family court matters, in cases addressing juvenile delinquency and child custody. 

FRAUD:  Just in case you wanted to know, in family court, fraud must be proven using the standard of clear and convincing evidence.

Beyond a Reasonable Doubt:  The highest burden of proof in any court proceeding is proof "beyond a reasonable doubt" and is ordinarily only used in criminal court proceedings.  When a person stands trial, the jury must begin with the assumption that the accusations against the defendant are false.  A juror can only find in favor for the government at the end of the trial if the prosecution has erased all reasonable doubts about the defendant's innocence from the juror's mind.  The "presumption of innocence" is essential to the criminal process. 

The mere mention of the phrase "presumed innocent until proven guilty" keeps judges and juries focused on the ultimate issue at hand in a criminal case:  whether the prosecution has enough evidence to prove beyond a reasonable doubt that the defendant committed the alleged acts. 

This is the standard normally required in criminal court because such proceedings can result in the deprivation of a defendant's liberty or even in his or her death.  These outcomes are far more severe than in civil trials in which monetary damages are the common remedy.

There is also a standard known as "beyond a shadow of a doubt" but I won't go there!

For Protective MothersWhere I find this subject of interest to protective mothers is in regard to what standard of proof is required for domestic violence civil protection orders.  In the State of Connecticut, the standard of proof is "the discretion of the court".  I'm not sure what the heck kind of standard that is, to be honest!  Here is a quick definition I located online at "The Free Dictionary".  Judicial Discretion is "Discretion is the power or right to make official decisions using reason and judgment to choose from among acceptable alternatives."  This strikes me as a rather extensive and broad-ranging level of power which could and has resulted in family court litigants experiencing serious legal abuse.

Of course, what is worse are those states that have no standards at all such as Minnesota.  The vast majority of States use the "preponderance of the evidence" as their standard.  States such as Connecticut that rely on the discretion of the judge often in practice use standards such as sufficient cause, reasonable cause, or good cause, which could be anything from probable cause on up to the preponderance of the evidence.  So Connecticut has a pretty low threshold when it comes to how much evidence you need to meet the legal standard required to determine that there are grounds for an order of protection.  That's actually good if you are a protective mother.


The bottom line, however, is how little judges take into consideration the burden of proof which they are supposed to be using.  In the Oneglia hearings I have observed, judges simply proceed with the standard of "clear and convincing evidence" rather than that of "probable cause" which they are supposed to be using.  In the memoranda of decision I have seen, particularly those from family court, judges often don't even refer to the burden of proof or provide supporting case law to buttress their rulings.  They simply do what they feel like. 

So while I have given you this long, exhaustive explanation regarding what the legal system means when it refers to the burden of proof, and it is important for you to know what it is, don't hold your breath expecting the Court to adhere to it.


Saturday, August 3, 2013


I was at a recent hearing where the plaintiff was trying to expose her ex husband's financial fraud.  This is extremely difficult to do because family court will do everything it can to obstruct any woman who attempts to hold her ex husband accountable financially. 
Unfortunately, many cheating, lying exes get some additional help with this since the banks and brokerage companies hold strictly confidential the majority of financial records which could prove such fraud, and the only way to get your hands on those documents is through discovery ordered by the Court. 
However, post judgment, the likelihood that you will obtain such discovery through a court order is mostly nil. 
Because the Courts prefer to protect and shelter evil doers, particularly your slime bag ex.  So most judges will quietly stick their fingers on the scale of justice and decide against any kind of discovery when you go to family court with a request.
If you want to swim against the tide and see if you can get discovery nonetheless, you would have to meet the burden of proof standard established by Oneglia v. Oneglia 14 Conn. App. 267 - 1988, "proof beyond a mere suspicion" or probable cause. Supposedly, if you meet that burden of proof, you will then be able to move forward with discovery.
Needless to say, my friend lost. 
Again, not because she didn't have proof beyond a mere suspicion, but just to say that no matter what she did, the Court was going to rule against her because they don't like reopening cases post-judgment, particularly for a woman.  
So what does burden of proof actually mean? 
We've heard these terms bandied about on TV--"probable cause" to search a private home,  and "beyond a reasonable doubt" to prove someone guilty of murder.  We've heard "Innocent until proven guilty."  But what does that all mean? 
The Burden of proof represents the extent to which a plaintiff or the government has to prove its case in order to prevail in a legal action. 
There are three types of burdens: 
There is the tactical burden of proof, or the persuasive burden of proof which applies to how each party in a case argues regarding what the Court or a jury should infer from the proof they have before them. 
There is also the evidential burden of proof, where each side presents documentation to prove each of their positions correct. 
Then, finally, there is the legal burden of proof which is what I am addressing in this article. 
The legal burden of proof represents the obligation the plaintiff or the government has to prove the elements of the case in order to win the lawsuit.  By elements of the case what I mean is that any legal charge includes more than one component.  The one bringing the charge must show that each component exists, and also must show the extent to which each component exists such that it meets the requirements of the law.  One such component might be a motivational component in a crime, such as intentionality.
The burden of proof ordinarily rests upon the person or government entity that makes the charges, while the defendant proceeds with the assumption that he is innocent. 
The latin maxim associated with these respective positions is as follows:  semper necessitas probandi incumbit ei qui agit, which means, "the necessity of proof always lies with the person who lays charges." 
Depending on the kind of case, the plaintiff or the prosecution will have to achieve a specific level of proof in connection to the elements of the case in order to win.  These levels can be as low as the Oneglia standard of "beyond a mere suspicion" or "probable cause" all the way up to the highest level "Beyond a reasonable doubt" which we are familiar with in criminal cases. 
It is like that old adage of the "straw that breaks the camel's back."  The plaintiff, or the government, has to throw down as many straws as it takes to reach the breaking point where disbelief dissolves into belief.  There are demarcations for each standard, or for the number of straws that you have to throw down in order to meet those standards.  
While this should be a standard measured in a fairly mathematical way, and some articles on this subject, in fact, do measure each standard by percentage, in real practice, we who experience the arbitrary nature of adjudication in family court know that these standards are applied fairly randomly and arbitrarily.  More on this in Part II.