Pondering the Preponderance Standard

By Russell Smith

Last month, criminal charges against Dominique Strauss-Kahn for the alleged sexual of hotel maid Nafissatou Diallo were dismissed after the Manhattan District Attorney’s office found that Ms. Diallo had consistently lied to investigators about matters in her personal life and background.

Prior to the dismissal, Ms. Diallo filed a civil complaint against Mr. Stauss-Kahn, requesting money damages to compensate her for injuries suffered during the alleged sexual assault. Presumably, if the Manhattan District Attorney does not have enough confidence to pursue charges against Strauss-Kahn, Ms. Diallo’s civil case cannot stand a chance of succeeding. Not so, according to some attorneys interviewed by the New York Times who are familiar with civil litigation.

The primary reason: the preponderance of the evidence standard.

In criminal trials, jurors must find a defendant guilty “beyond a reasonable doubt” in order to convict. However, in a civil trial, jurors need only to conclude that “the preponderance of the evidence” weighs in favor of the plaintiff in order to award damages.

The Times cited one attorney who, in explaining the preponderance of the evidence standard, said that juries should “take the evidence and look at it as if it were on a scale, and it appears to be even, and add one feather to one side and it slightly tilts, that’s a preponderance of the evidence.”

Is that so?  Is this what our legal system has come to? The balancing of feathers?!  The Times didn’t examine this seemingly absurd and unhelpful definition.  We will.  

As it turns out, there are a multitude of ways to formulate the preponderance of the evidence standard. Plaintiffs’ lawyers – who represent injured persons in civil lawsuits seeking money damages – try to phrase the standard in a way that makes it easy for the jury to decide the case in favor of the injured person. (Some plaintiffs’ lawyers even use the preponderance standard to entice injured persons into their offices.) Other attorneys get creative, invoking the scales of justice and the nearly weightless feather in an effort to persuade jurors that they need only find the plaintiff’s evidence the slightest bit more convincing than the defendant’s in order to return a verdict in the plaintiff’s favor.

Even those lawyers who are not trying to be creative tend to propose confusing definitions of the preponderance standard. Mark Siesel, a personal injury lawyer blogging about the Strauss-Kahn case, described the preponderance standard as “literally mean[ing] evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it.” No kidding?  Your Honor, I’d like to offer into evidence this 7,000 pound African elephant.

The New York Pattern Jury Instructions describes “a preponderance” as “the greater part of the evidence.” This appears to draw a clear, almost mathematical line: if the jury is 51 percent confident in the defendant’s guilt, then the plaintiff has proven his or her case by a preponderance of the evidence.

But according to Corpus Juris Secundum, a legal encyclopedia, when the evidence is “evenly balanced” in a civil case, the jury must conclude that the plaintiff failed to carry the burden of proof, and return a defense verdict.

So is 50.01 percent “a preponderance” or is it an “evenly balanced?” 50.000000000001 percent? At what (decimal) point has the concept of “evenly balanced” been eviscerated? One blogger recently expressed concerns that during sexual assault hearings on college campuses, the preponderance standard was often defined with several decimal places.

Parsing the proper preponderance standard may be entirely for naught. The Jury Research Institute has found that during deliberations, jurors typically disregard the court’s precise formulations of the preponderance standard. Instead, jurors rely on their basic sense of fairness, basing verdicts on whether plaintiffs are “entitled to anything.”

And, really, that seems to be just as good a definition as any of the rest.  In fact, it’s better.






2 Responses

  1. Kamren says:

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