What is “clear and convincing evidence”?

In most personal injury and similar tort cases, the injured plaintiff must prove that the defendant was “more likely than not” responsible for the injuries, a standard known as “preponderance of the evidence.” Some cases, however, require that the plaintiff provide additional evidence that makes his case stronger than “more likely than not.” When an injured plaintiff has to prove his case with more than a preponderance of the evidence but less than “beyond a reasonable doubt” (used in criminal cases), then he is held to the “clear and convincing evidence” standard.

“Clear and convincing evidence” is used in several types of civil claims, including administrative hearings, habeas corpus, and some fraud claims. In these cases, the plaintiff must prove not merely that his version of events is “more likely than not” true. Rather, plaintiffs who face a “clear and convincing evidence” standard must prove that it is “substantially more likely than not” their claims are true.

Although the clear and convincing evidence standard is used in nearly every U.S. court, many jurisdictions don’t have a clear explanation of what it means. Plaintiffs who have to meet the lower “preponderance of the evidence” standard are sometimes described as having to prove their version of events is 51% more likely than the defendant’s case. Meanwhile, criminal prosecutors who have to meet the higher “beyond a reasonable doubt” standard can be seen as having to prove their case as close to 100% percent as possible. However, there’s no similar numerical estimate for the “clear and convincing evidence” standard. This standard requires the plaintiff to prove that his case is more than 51% likely, but less than 100%.

Instead, in most states, courts understand “clear and convincing evidence” to mean that the plaintiff must prove that it is “substantially” more likely than not that his case is true, and that the judge or jury must feel that the evidence in the plaintiff’s favor is strongly convincing. The judge or jury does not have to be convinced beyond any doubt, but they do have to have most of their major questions and concerns settled in favor of the plaintiff.

For example, suppose that the plaintiff sues the defendant for fraud. The plaintiff claims that the defendant sold her a house and claimed the house had never been infested with insects, when he knew that the house had serious termite problems. Suppose, also, that the only evidence the plaintiff has that the defendant knew about the termites is a copy of a bill from a pest control company that had sprayed the house with an all-purpose insecticide five years earlier.

In this case, the plaintiff may lose. Even though the pest control bill indicates that someone knew the house had been or might be infested with some kind of bugs, it may not be enough evidence to substantially convince the judge or jury that the defendant knew the house actually had termites. The plaintiff might not have met the “clear and convincing evidence” standard because she left too many important questions in the jury’s mind, such as “did the defendant know there were actually termites in the house? Or did he hire a pest control company ‘just in case’?”

However, suppose that, instead of merely presenting a copy of the pest control bill, the plaintiff in the fraud case also presents a letter from the pest control company to the defendant that warns him about termites, a report from a building inspector that says the house’s wooden foundation beams have serious insect damage, and a tape-recorded conversation between the defendant and his brother-in-law in which the defendant brags about selling his termite-infested house for a high price.

This extra evidence may be enough to convince the jury that the defendant is liable for fraud under the clear and convincing evidence standard. It answers many more questions the judge or jury may have, and it strongly supports the plaintiff’s claim that the defendant knew about the termite infestation when he sold his house to the plaintiff. It’s still possible the defendant didn’t know about the termites, but it is much less likely once the plaintiff has presented the extra evidence.

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