When Does the Burden of “Clear And Convincing Evidence” Apply?
Posted on: March 30, 2009 by: admin
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I was in the process of delving into the application of preponderance of the evidence in civil cases and stumbled upon the burden of “clear and concise.” You may find this burden useful when dealing with the government because it is an additional burden that it seems like they are unaware of and hence unprepared to deal with.Here in Colorado we have a statute, 13-25-127(1) C.R.S., that imposes the burden of “preponderance of the evidence” in all civil cases. The Colorado Supreme Court said regarding this statute, “The statute before us was enacted to create some uniformity concerning the burden of proof in civil cases, to minimize the exceptions to the general application of the “preponderance” standard, and to eliminate the often arcane and difficult distinctions drawn among the various burdens of proof.” Gerner v. Sullivan, 768 P.2d 701, 704 (Colo. 1989). “…we must apply the statute unless its operation adversely affects the litigants’ constitutional rights. Id. @ 705 (emphasis mine).
Due process is flexible and calls for such procedural protections as the particular situation demands. People v. Taylor, 618 P.2d 1127, 1135 (Colo. 1980). Courts have determined on a case-by-case basis when state statutes create such constitutionally protected expectations. Andretti v. Johnson, 779 P.2d 382, 384 (Colo. 1989). The possibility of being deprived of such basic liberties raises constitutional concerns which are not adequately addressed if proof is by a preponderance of the evidence. Sabrosky v. Denver Department of Social Services, 781 P.2d 106, 107 (Colo.App. 1989).
In the discussion that follows the Colorado Supreme Court shows when the lighter burden of preponderance does not apply in civil cases.
Only when there is a constitutional concern have we declined to follow the requirements of section 13-25-127(1). In Diversified Management, Inc. v. Denver Post, Inc. 653 P.2d 1103, 1108 (Colo. 1982), we stated that “[u]nless the clear and convincing standard is constitutionally required [section 13-25-127(1)] would require that the preponderance standard be applied.” Because the constitutional issue of freedom of speech in a defamation action was present in Diversified Management we concluded that a “clear and convincing” standard superseded the “preponderance” standard pursuant to section 13-25-127(1). See also Manuel v. Fort Collins Newspapers, Inc., 42 Colo.App. 324, 599 P.2d 931 (1979), rev’d on other grounds 631 P2.d 1114 (Colo.1981) (public official or public figure must prove by clear and convincing evidence that false and defamatory statement of fact was published). In proceedings involving termination of a parent-child relationship, the appropriate standard of proof is “clear and convincing” evidence because of the fundamental liberty interest of natural parents in the care, custody and management of their children. People in Interest of A.M.D., 648 P.2d 625, 631 (Colo.1982) (per curiam).2 See also Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Gerner, supra @ 704.
Proof by “clear and convincing evidence” is proof which persuades the trier of fact that the truth of the contention is “highly probable.” Taylor, supra @ 1136. For an increase in the burden of proof is “one way to impress the fact finder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered.” Taylor, supra @ 1135. The clear and convincing standard thus minimizes the risk of error. Taylor, supra @ 1136.
Clear and convincing evidence means evidence which is stronger than a mere “preponderance”; it is evidence that is highly probable and free from serious or substantial doubt. Metro Moving & Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo.App. 1995).
The application of these principals, of course, is civil matters. In the Taylor case the issue was the commitment of Taylor to an institution and loss of liberty and reputation. Other issues mentioned above include freedom of speech and the termination of a parent-child relationship. It looks to me like the “clear and convincing” standard could be applied in any kind of administrative proceeding involving constitutional issues. The proper allocation for the burden of proof is a substantial right of the parties and it is reversible error if the trial court allocates the burden of proof to the wrong party. Atlantic & Pacific Ins. Co. v. Barnes, 666 P.2d 163, 165 (Colo.App. 1983). It seems to follow that if the finder of fact applies the wrong burden, that would also be reversible. Care should be taken to preserve the issue with the finder of fact by raising it.
West Key Numbers for cross application to your state or federal court include: Constitutional Law 251.1, 255(5), Evidence 598(1), 596(1), and Mental Health 135.
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