Wednesday, November 26, 2014

I was just watching CNN, and Chris Cuomo was talking to Paul Callan about a possible civil suit against Police Officer Darren Wilson. This prompted a discussion of the different burdens of proof at a grand jury hearing (probable cause) and a civil trial (preponderance of the evidence). Callan claimed that the burdens of proof were the same or at least virtually identical. Cuomo claimed that probable cause is a lower burden of proof than preponderance of the evidence. So, why was right?

Cuomo. Preponderance of the evidence is more likely than not, i.e., 50.1%. If Michael Brown's family sued Darren Wilson for wrongful death, they would have to prove that it was more likely than not that Wilson was liable. Meanwhile, "[p]robable cause has a lower threshold of proof than proof beyond a reasonable doubt or by a preponderance of the evidence, and has been defined as "'a state of facts as would lead a [person] of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion'" of the fact to be proved." People v. Hardacre, 109 Cal.Rptr.2d 667 (Cal.App. 6 Dist. 2001); see also State v. Pledger, 896 P.2d 1226 (Utah 1995) ("The committing magistrate has the responsibility to determine probable cause at a preliminary hearing. This standard is lower, even, than a preponderance of the evidence standard applicable to civil cases.").

Indeed, check out this excerpt from U.S. v. Agriprocessors, Inc., 2009 WL 595562 (N.D.Iowa 2009):

The government's cross-examination of Ms. Kuehn was highly effective in that it exposed flaws in her reasoning, as well as her deep unfamiliarity with the federal grand jury process. For example, Ms. Kuehn did not even know how to define probable cause, the quantum of evidence a grand jury must possess to validly return an indictment against a target of an investigation. Ms. Kuehn erroneously equated the probable cause standard with the preponderance of the evidence standard.

-CM

https://lawprofessors.typepad.com/evidenceprof/2014/11/best-of-burden-probable-cause-vs-preponderance-of-the-evidence-in-ferguson.html