Preponderance of the evidence

[laughing dog]

The problem with the preponderance of evidence standard is that a fact-finder cannot conclude that there is insufficient evidence. Once the case is in front of them they must decide for one party and against another, and in either case a decision is being made. Res judicata and all that.

In effect, the fact finder thinks there is insufficient evidence of one side of the case, he/she finds for the other side. How is that different in a trial with a higher standard of evidence with a presumption of innocence?

 

[Deepak]

The problem with the preponderance of evidence standard is that a fact-finder cannot conclude that there is insufficient evidence. Once the case is in front of them they must decide for one party and against another, and in either case a decision is being made. Res judicata and all that.

In effect, the fact finder thinks there is insufficient evidence of one side of the case, he/she finds for the other side. How is that different in a trial with a higher standard of evidence with a presumption of innocence?

Consider a case where one party claims to have a signed deed to a property and the other party claims the signature is a forgery.

If R brings forward 6 witnesses, and F brings forward 5 and all witnesses are determined to seem credible then the preponderance would compel that we find for R. If this was instead split 5 and 5 then we would still be compelled to decide for one party or the other. The rules of jurisprudence would consider this decision to be final - but if this was, for example, an investment of one's life savings I don't think many people would find it terribly convincing.

With a higher burden of proof the finding can be indeterminate - so the accused is not punished if there isn't compelling evidence against him. This also provides for an ability to retry the matter in light of new evidence (exception being for double-jeopardy in criminal cases).

If there's no material difference between preponderance of evidence and higher burdens, then would you advocate for this same standard in all legal matters?

 

[barbos]

I want my 60 seconds back

 

[Toni]

In effect, the fact finder thinks there is insufficient evidence of one side of the case, he/she finds for the other side. How is that different in a trial with a higher standard of evidence with a presumption of innocence?

Consider a case where one party claims to have a signed deed to a property and the other party claims the signature is a forgery.

If R brings forward 6 witnesses, and F brings forward 5 and all witnesses are determined to seem credible then the preponderance would compel that we find for R. If this was instead split 5 and 5 then we would still be compelled to decide for one party or the other. The rules of jurisprudence would consider this decision to be final - but if this was, for example, an investment of one's life savings I don't think many people would find it terribly convincing.

With a higher burden of proof the finding can be indeterminate - so the accused is not punished if there isn't compelling evidence against him. This also provides for an ability to retry the matter in light of new evidence (exception being for double-jeopardy in criminal cases).

If there's no material difference between preponderance of evidence and higher burdens, then would you advocate for this same standard in all legal matters?

You argue as though the contest of which side wins depends entirely upon which side brings forth the most witnesses. It doesn't, at least not in the U.S.

What matters is which testimony and which witnesses are more believable.

 

[Toni]

Lets take a look at the implications of using this standard to convict someone, even if jail time isn't involved:


We have a video:

Person A uses a computer to do an assignment. They finish it and print it out. They log off, person B sits down. They recover the file, put their own name on it and print it out, then have person C do likewise.

The teacher gets three identical papers.

From looking at the video it's clear that A had no part of the impropriety but B & C are in cahoots. Unfortunately, this happened on a day with a school spirit activity going on, all three were wearing clown makeup so there's no way to figure out who is who.

What do we do?

Expel all three cheaters.

Simple statistics shows that there's a 2/3 chance they cheated. That's greater than 50%, you have to rule against them.

REALLY bad set up there, Loren. And I'm surprised. I thought you were a computer guy. The computer will certainly keep a log of when each individual signed on and what file was recovered. Not only that but generally speaking, one user does not have access to the files of another user unless the files are placed such that they are shared. Which would go as evidence of possible collusion or conspiracy.

 

[Keith&Co.]

THen testing them on the content of the report IS investigating the plagiarism. Charge the two with the lowest scores.

A lot of the time cheaters aren't incompetent, just lazy. Expulsion is enough motivation to lift their game, and if it lifts above the person they cheated from, you just got person A expelled.

That's why i said test them on the report, not on the subject they were supposed to write a report for.
This protects the actual author UNLESS the cheaters were too lazy to write a report BUT motivated sufficiently to read and understand the report better than the guy who actually wrote it, which seems unlikely.

I mean, if hte system flat out DEMANDS that someone be punished, that we can't just put a mark in all three files and see if a trend develops, then this seems the most likely to identify the actual culprits without having to resort to waterboarding.


But it seems to me that in schools today, the fear of any federal program pales in comparison to the fear of the parents. None of this would be sufficient evidence for the parent to be forced to admit that their blessing had any culpability in any sort of wrong-doing, and the last three of my wife's principals essentially had a no-confrontation policy with respect to vocal parents.

The Feds may withold funding, but the parents will sue.

 

[Tom Sawyer]

The flaw in the example is that it has the university expelling some people who are dressed up as clowns. Clowns are too fucking scary for anyone to mess with in that way - even if Obama tells you to.

 

[ksen]

All they need to do is have affirmative homework.

 

[Loren Pechtel]

Lets take a look at the implications of using this standard to convict someone, even if jail time isn't involved:


We have a video:

Person A uses a computer to do an assignment. They finish it and print it out. They log off, person B sits down. They recover the file, put their own name on it and print it out, then have person C do likewise.

The teacher gets three identical papers.

From looking at the video it's clear that A had no part of the impropriety but B & C are in cahoots. Unfortunately, this happened on a day with a school spirit activity going on, all three were wearing clown makeup so there's no way to figure out who is who.

What do we do?

Expel all three cheaters.

Simple statistics shows that there's a 2/3 chance they cheated. That's greater than 50%, you have to rule against them.

REALLY bad set up there, Loren. And I'm surprised. I thought you were a computer guy. The computer will certainly keep a log of when each individual signed on and what file was recovered. Not only that but generally speaking, one user does not have access to the files of another user unless the files are placed such that they are shared. Which would go as evidence of possible collusion or conspiracy.

Depends on the system. I've dealt with systems where you sign into the whole place, not individual computers.

The basic issue is they couldn't identify which of the three was the creator and which were the plagiarists.

 

[Deepak]

Consider a case where one party claims to have a signed deed to a property and the other party claims the signature is a forgery.

If R brings forward 6 witnesses, and F brings forward 5 and all witnesses are determined to seem credible then the preponderance would compel that we find for R. If this was instead split 5 and 5 then we would still be compelled to decide for one party or the other. The rules of jurisprudence would consider this decision to be final - but if this was, for example, an investment of one's life savings I don't think many people would find it terribly convincing.

With a higher burden of proof the finding can be indeterminate - so the accused is not punished if there isn't compelling evidence against him. This also provides for an ability to retry the matter in light of new evidence (exception being for double-jeopardy in criminal cases).

If there's no material difference between preponderance of evidence and higher burdens, then would you advocate for this same standard in all legal matters?

You argue as though the contest of which side wins depends entirely upon which side brings forth the most witnesses. It doesn't, at least not in the U.S.

What matters is which testimony and which witnesses are more believable.

I think the edge cases are more important that the best case scenarios. Certainly when one party is the police the odds are actually stacked quite heavily against the other party with such a standard.

 

[doubtingt]

Exactly--I was showing that a blind obedience to preponderance of the evidence results in an obviously stupid decision.

Are there a lot of example cases where they prosecute all the possible suspects because they can't identify the perpetrators?
That's actually not a preponderance of evidence. You're saying you cannot identify the guilty parties, that's a lack of evidence.

Preponderance of the evidence is actually a misnomer since it really means that no evidence at all is needed.

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,[7] described it simply as "more probable than not."

IOW, if general statistical probabilities mean that any accused person is more than 50% likely to be the cheater, then the burden is met. It also means that if it is subjectively felt that the odds that the accuser is lying is as much as 49.99% but still less than 50%, the burden has been met without any evidence being presented to support the guilt of the accused.

It is not used in virtually any criminal cases (outside of the new rape laws in question), because it basically eliminates the presumption of innocence and has the defacto effect of allowing the accusation to count as evidence of itself if it is deemed that that sort of accusation in general is less likely than not to be a lie.
It is used mostly in civil cases, where it can actually make sense. If two parties are fighting over property rights, it is usually known that the property does belong to one of us, and the courts needs to decide which one or there will be no resolution and the property is forever in limbo. So, the court must decide in favor of one party or the other, thus a +/- 50% standard is needed because the odds are high that neither party could reach a higher standard than that and thus the case would have no resolution. IOW, neither you or I can prove beyond reasonable doubt that the property is ours, so the property would just sit there indefinitely without claim unless the courts decides which of us has the better claim to it, which is the same as using a "preponderance of the evidence".
Note that is such a case there really is no guilt or innocence determined, thus the concept of innocent until proven guilty does not really apply. It is a judgment of relative merit for competing claims where there is only a need to determine which claim has more relative merit.

In contrast, guilt or innocence of violating a criminal statute is what a rape case is all about, so the the presumption of innocence needs to apply and it is not relative merit, but proof in a more absolute sense that does and should matter. Thus something much higher than 50% probability of guilt should be required.

 

[Toni]

REALLY bad set up there, Loren. And I'm surprised. I thought you were a computer guy. The computer will certainly keep a log of when each individual signed on and what file was recovered. Not only that but generally speaking, one user does not have access to the files of another user unless the files are placed such that they are shared. Which would go as evidence of possible collusion or conspiracy.

Depends on the system. I've dealt with systems where you sign into the whole place, not individual computers.

The basic issue is they couldn't identify which of the three was the creator and which were the plagiarists.

Yes, but there still should be a log of the time a file was accessed and when it was printed.

I understand what situation you wanted to set up. The reality is that professors and teachers often have to deal with this sort of situation. My husband is an academic and has had the situation occur where two students handed in the same paper. In this particular case, he was quite certain which student actually authored the paper and was able to address the situation. In other cases, papers which were clearly not authored by the student claiming authorship were handed in. Usually, an instructor who has the time to actually know his or her students and to read their papers can make such a determination, sometimes with the aid of software, but even before such programs existed, plagiarism is often easily detectable. Evidence is weighed and judgments about the veracity of the purported author(s) are made; if physical evidence is available, that is also assessed.

- - - Updated - - -

You argue as though the contest of which side wins depends entirely upon which side brings forth the most witnesses. It doesn't, at least not in the U.S.

What matters is which testimony and which witnesses are more believable.

I think the edge cases are more important that the best case scenarios. Certainly when one party is the police the odds are actually stacked quite heavily against the other party with such a standard.

In the case of rape on university cases, most often the police are not involved because it is not in the university's best interest to have them involved. That is because they report rape statistics based on police reports filed. Cases handled 'in house' do not count on their stats. I believe that this is wrong, but...

 

[Toni]

Are there a lot of example cases where they prosecute all the possible suspects because they can't identify the perpetrators?
That's actually not a preponderance of evidence. You're saying you cannot identify the guilty parties, that's a lack of evidence.

Preponderance of the evidence is actually a misnomer since it really means that no evidence at all is needed.

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,[7] described it simply as "more probable than not."

IOW, if general statistical probabilities mean that any accused person is more than 50% likely to be the cheater, then the burden is met. It also means that if it is subjectively felt that the odds that the accuser is lying is as much as 49.99% but still less than 50%, the burden has been met without any evidence being presented to support the guilt of the accused.

It is not used in virtually any criminal cases (outside of the new rape laws in question), because it basically eliminates the presumption of innocence and has the defacto effect of allowing the accusation to count as evidence of itself if it is deemed that that sort of accusation in general is less likely than not to be a lie.
It is used mostly in civil cases, where it can actually make sense. If two parties are fighting over property rights, it is usually known that the property does belong to one of us, and the courts needs to decide which one or there will be no resolution and the property is forever in limbo. So, the court must decide in favor of one party or the other, thus a +/- 50% standard is needed because the odds are high that neither party could reach a higher standard than that and thus the case would have no resolution. IOW, neither you or I can prove beyond reasonable doubt that the property is ours, so the property would just sit there indefinitely without claim unless the courts decides which of us has the better claim to it, which is the same as using a "preponderance of the evidence".
Note that is such a case there really is no guilt or innocence determined, thus the concept of innocent until proven guilty does not really apply. It is a judgment of relative merit for competing claims where there is only a need to determine which claim has more relative merit.

In contrast, guilt or innocence of violating a criminal statute is what a rape case is all about, so the the presumption of innocence needs to apply and it is not relative merit, but proof in a more absolute sense that does and should matter. Thus something much higher than 50% probability of guilt should be required.

Denning took place in the UK so is not applicable to the U.S.

Further, preponderance of evidence is the standard required in most civil cases. Please not that expulsion from a university is not a criminal case.

 

[doubtingt]

Preponderance of the evidence is actually a misnomer since it really means that no evidence at all is needed.

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,[7] described it simply as "more probable than not."

IOW, if general statistical probabilities mean that any accused person is more than 50% likely to be the cheater, then the burden is met. It also means that if it is subjectively felt that the odds that the accuser is lying is as much as 49.99% but still less than 50%, the burden has been met without any evidence being presented to support the guilt of the accused.

It is not used in virtually any criminal cases (outside of the new rape laws in question), because it basically eliminates the presumption of innocence and has the defacto effect of allowing the accusation to count as evidence of itself if it is deemed that that sort of accusation in general is less likely than not to be a lie.
It is used mostly in civil cases, where it can actually make sense. If two parties are fighting over property rights, it is usually known that the property does belong to one of us, and the courts needs to decide which one or there will be no resolution and the property is forever in limbo. So, the court must decide in favor of one party or the other, thus a +/- 50% standard is needed because the odds are high that neither party could reach a higher standard than that and thus the case would have no resolution. IOW, neither you or I can prove beyond reasonable doubt that the property is ours, so the property would just sit there indefinitely without claim unless the courts decides which of us has the better claim to it, which is the same as using a "preponderance of the evidence".
Note that is such a case there really is no guilt or innocence determined, thus the concept of innocent until proven guilty does not really apply. It is a judgment of relative merit for competing claims where there is only a need to determine which claim has more relative merit.

In contrast, guilt or innocence of violating a criminal statute is what a rape case is all about, so the the presumption of innocence needs to apply and it is not relative merit, but proof in a more absolute sense that does and should matter. Thus something much higher than 50% probability of guilt should be required.

Denning took place in the UK so is not applicable to the U.S.

That is completely irrelevant. The same definition of "preponderance of evidence" applies in the US and requires nothing more than the claim itself being deemed more likely true than false, regardless of whether any supporting evidence exists. In fact, we can assume that even though people lie, any random utterance about what one person saw another person do is more likely to be true than false. For example, of all the times anyone has said "I saw person X today", they probably were telling the truth and did see person X more than 50% of the time. This means that unless the assertion violates what we know is possible, nearly every accusation starts out already meeting this standard prior to any evidence being presented. Thus, the burden is on the accused to prove their innocence.

Further, preponderance of evidence is the standard required in most civil cases. Please not that expulsion from a university is not a criminal case.

The nature of the punishment does not define whether one is being found guilty of a crime. The student is being expelled under the assumption that they committed a criminal act. The fact that the University is employing it own methods and not relying upon the courts to determine whether the criminal act was committed does not change this fact. The University is ignoring both civil and criminal courts on the matter by deciding it themselves, so it is not a civil case or criminal case by that standard. It is in its nature, however, an accusation of a crime rather than a dispute over competing claims that characterize most civil cases, thus the same logic that makes a "preponderance" of the evidence" standard reasonable for civil disputes by grossly unjust and against the presumption of innocence for criminal cases applies to the determination that the University is making (especially as an arm of the State) that the accused committed the crime for which they are being punished.

 

[Trausti]

Denning took place in the UK so is not applicable to the U.S.

Further, preponderance of evidence is the standard required in most civil cases. Please not that expulsion from a university is not a criminal case.

As an academic point, what took place in the UK is not irrelevant as the US inherited English/British common law. Even today there are instances where US Courts refer to decisions made across the pond. But the bold above is what matters. There is much confusion in this tread. Preponderance of the evidence is a civil standard, not criminal one. A university is not a prosecuting authority. Its standards can be much lower for what it perceives as improper conduct.

 

[Deepak]

In the case of rape on university cases, most often the police are not involved because it is not in the university's best interest to have them involved. That is because they report rape statistics based on police reports filed. Cases handled 'in house' do not count on their stats. I believe that this is wrong, but...

The only hobby horse I'm riding in this thread is regarding this standard in legal proceedings. I'll leave advocacy of any subtext to interested parties.

 

[Loren Pechtel]

Depends on the system. I've dealt with systems where you sign into the whole place, not individual computers.

The basic issue is they couldn't identify which of the three was the creator and which were the plagiarists.

Yes, but there still should be a log of the time a file was accessed and when it was printed.

I understand what situation you wanted to set up. The reality is that professors and teachers often have to deal with this sort of situation. My husband is an academic and has had the situation occur where two students handed in the same paper. In this particular case, he was quite certain which student actually authored the paper and was able to address the situation. In other cases, papers which were clearly not authored by the student claiming authorship were handed in. Usually, an instructor who has the time to actually know his or her students and to read their papers can make such a determination, sometimes with the aid of software, but even before such programs existed, plagiarism is often easily detectable. Evidence is weighed and judgments about the veracity of the purported author(s) are made; if physical evidence is available, that is also assessed.

True--but that doesn't address the issue of a case where they can't find the truth. I was simply showing that preponderance of the evidence makes no sense in a punishment role.

 

[Tom Sawyer]

True--but that doesn't address the issue of a case where they can't find the truth. I was simply showing that preponderance of the evidence makes no sense in a punishment role.

And you did that kind of well. It wasn't a slam-dunk argument by any means and there were some holes in it, but it's safe to say that you've shown that it's at least 51% likely that this is the case.

Therefore, nobody is allowed to argue in favour of using preponderance of evidence to determine punishment on this forum anymore.

 

[AthenaAwakened]

Is preponderance of evidence ever used to determine sentencing?

 

[Toni]

Denning took place in the UK so is not applicable to the U.S.

Further, preponderance of evidence is the standard required in most civil cases. Please not that expulsion from a university is not a criminal case.

As an academic point, what took place in the UK is not irrelevant as the US inherited English/British common law. Even today there are instances where US Courts refer to decisions made across the pond. But the bold above is what matters. There is much confusion in this tread. Preponderance of the evidence is a civil standard, not criminal one. A university is not a prosecuting authority. Its standards can be much lower for what it perceives as improper conduct.

I believe that the Denning case was in the 1940's. While the US justice system owes much to the English/British common law, I don't think much has been adopted since the Revolution, some 170 years prior to Denning.

You are exactly correct re: the university vs legal system