% certainty Curved Line represents
Level Level of certainty needed toprove the standard difficulty to prove or articulate 90+ % CONVICTION – Proof Beyond Criminal Case a Reasonable Doubt
75% Insanity defense / Clear & alibi / prove consent Convincing given voluntarily Evidence
Needed to prevail in Preponderance 51% civil case – LIABLE of evidence Asset Forfeiture
35% Arrest / Search / Probable Indictment / Cause Pretrial hearing
20% Stop & Frisk Reasonable – must be Suspicion articulated
Hunch – not able to Mere 0% articulate / Suspicion no stop
Mere Suspicion – This term is used by the courts to refer to a hunch or intuition. We all experience this in everyday life but it is NOT enough “legally” to act on. It does not mean than an officer cannot observe the activity or person further without making contact. Mere suspicion cannot be articulated using any reasonably accepted facts or experiences. An officer may always make a consensual contact with a citizen without any justification. The officer will however have not justification to stop or hold a person under this situation. One might say something like, “There is just something about him that I don’t trust”. “I can’t quit put my finger on what it is about her.” “He looks out of place.”
Reasonable Suspicion – Stop, Frisk for Weapons, *(New) Search of vehicle incident to arrest under Arizona V. Gant. The landmark case for reasonable suspicion is Terry v. Ohio, 392 U.S. 1 (1968) This level of proof is the justification police officers use to stop a person under suspicious circumstances (e.g. a person peaking in a car window at 2:00am). It is not necessary to specifically identify a crime, only that the activity is suspicious based on common sense, experience, or familiarity of the area. Lorenz’ Definition – Facts and circumstances that would lead a reasonable person to believe that criminal activity is afoot.
Probable Cause – Also known as (PC) Arrest, Search, Grand Jury Indictment, Preliminary Hearing Illinois v. Gates 462 U.S. 213 (1983) provides a definition of probable cause based which is a “substantial chance” or “fair probability” of criminal activity. This level of proof allows a police officer to arrest a person when he believes the person committed a crime or to search a particular person, place, or thing when he believes there is evidence of a crime located there. Lorenz Definition – (PC to arrest) Facts and circumstances which would cause a reasonable person to believe that a crime has been committed and that a particular person committed that crime. Lorenz Definition – (PC to search) Facts and circumstances which would cause a reasonable person to believe that a crime has been committed and that evidence of that crime is located in the particular place to be searched.
Preponderance of evidence – lowest level of proof used in a trial. It is also known as balance of probabilities. This is the standard of proof in most civil cases (non‐criminal) – wrongful death suits (e.g. O.J. Simpson was found liable for the deaths of two individuals in the lawsuit after he was acquitted in a criminal trail.), family law cases (child custody, divorce). More than a 50% chance that something is true or more likely than not.
Clear & Convincing Evidence – A higher burden of proof than preponderance of evidence. A party in a case must prove to the “trier of fact” that it substantially more likely than not that something is true or some fact is true. INSANITY DEFENSE ‐ Federal statutes require this standard of proof for a successful insanity defense. Some states allow a finding of insanity using only preponderance of evidence. CONSENT ‐ In a search conducted by a police officer based on consent the state must prove that consent was given voluntarily. Texas Court of Criminal Appeals has established that the “clear and convincing evidence” test must be utilized on appeal to determine whether a criminal defendant’s consent to search was voluntary. See: State v. Ibarra, 953 S.W.2d 242 (Tex.Crim.App. 1997).
Proof beyond a reasonable doubt – Needed for CONVICTION. Necessary to prove someone is guilty of a crime. Beyond any reasonable alternative. The prosecution failed to prove that O.J. Simpson was guilty of murder beyond a reasonable doubt and he was acquitted (found not guilty). Simpson was later found liable for the deaths of the same two people in a civil trial because the burden of proof was “preponderance of evidence”. The prosecution failed to prove Casey Anthony (the mom in Florida accused of killing her little daughter) was guilty of murder beyond a reasonable doubt. This does not mean the proof is beyond any doubt – only beyond a reasonable doubt. It has been described as, “…proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs.”