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Preponderance of evidence
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A preponderance of evidence is the standard of proof required in civil law cases. The standard, or burden of proof legal burden of proof (onus probandi) is the obligation resting on a party in a trial to produce the evidence that will shift the conclusion away from the default position to one's own position. The burden of evidence in criminal cases is "beyond a reasonable doubt" (WP). Preponderance of evidence is a far lower burden of proof, and relatively speaking, favors the prosecution or plaintiff more than the Reasonable doubt standard.[1] Grand jury indictment proceedings are afforded this standard, and unlike civil proceedings, are procedurally unrebuttable. Family court determinations solely involving money, such as child support under the Wikipedia:Child Support Standards Act. During the 1960s, the rights of youth became an issue in the United States (WP), and after 1970, preponderance of evidence was dropped as the standard used in juvenile court.

The standard is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true. Lord Denning, in Miller v. Minister of Pensions,[2] described it simply as "more probable than not."

In science and statistics and philosophy and probability itself, this is garbage. It is widely accepted that there is no way to assign mathematical values to truth, nor to eliminate all doubt, and "reasonable" is the most facilely obvious subjective judgement. It is beyond the current means of humankind even to assign probabilities to complex events, as the character Spock does in early Star Trek episodes.

The burden of proof is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, the best translation of which seems to be: "the necessity of proof always lies with the person who lays charges."[3] To fully understand the need for this standard, one must contemplate two things: the desire of the state to order and control, and the desire of humankind for vengeance. When only the state wielded the law, vengeance favored those with power alone. But since the power for vengeance has been handed to the people, it has substantiated the power of the state in an unholy alliance of self-interests: the people for their vengeance, and the state for the power of ready servants and deadly weapons that lies behind its laws.

Reasonable doubt, therefore, is a facade, a sham to allow the appearance of reason to justify the crimes of kidnapping and duress (imprisonment) and even murder (execution). However, there is a tension between this vengeance and mercy; not much of one, but it is there. It is shown most clearly in the case of criminal law, where although the state has a motive to exert a lesser degree of lenience, and the threat to society is more clear-loss of property being for the most part the only consequence of civil cases, it nonetheless gives the protection of a higher standard of proof to the accused. The more cynical might claim that this because crafters of civil law might see themselves as potentially accused, and want to get off, where if they were the plaintiff in a civil case, they might have only money to lose.

They who do not carry the burden of proof carries the presumption of innocence (WP), or benefit of assumption, meaning they need no evidence to support their claim. However, this is also sleight of hand, since fulfilling the burden of proof effectively captures the benefit of assumption. Presumption of innocence disappears; logically, this it should remain for all other matters than the one that has been proven, but even those writing about law talk about the benefit of assumption being captured, as though it were a common occurrence when it should be very unlikely in court for all doubt to be removed and the burden of proof to be passed off to the defense; why do they even mention such a thing, if it were not common practice to ignore their own rules and remove the presumption of innocence?

Preponderance of evidence is the standard of proof used when determining eligibility of unemployment benefits for a former employee accused of losing their job through alleged misconduct. In most US states, the employer must prove this case based on preponderance of the evidence.

"For instance, in cases where the parties disagree with respect to the nature of the separation that occurred (whether a claimant quit his or her employment or was discharged), the employer bears the burden initially of establishing the nature of that separation. In cases where an employee quits his or her employment, the employee has the burden of establishing that a statutory exception applies that entitles him or her to claim benefits. If a discharge has taken place, the employer bears the burden of establishing that the discharge was for misconduct."[4]

Preponderance of the evidence is the standard of proof used for immunity from prosecution under Florida's controversial stand-your-ground law. To this far lower burden of proof is added the absence of a jury. The defense must present their evidence in a pre-trial hearing, show that the statutory prerequisites have been met, and then request that the court grant a motion for declaration of immunity. The judge must then decide based on the preponderance of the evidence whether to grant immunity.[5]

Citations Edit

  2. Miller v. Minister of Pensions [1947] 2 All ER 372
  3. Transnational principle of law:
  4. State of Wisconsin Department of Workforce Developent
  5. Hussein and Webber

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