Pinning Down the Elusive “Clear and Convincing” Concept
September 28, 2016 § 4 Comments
Every ground for divorce except habitual cruel and inhuman treatment (HCIT) requires proof by clear and convincing evidence. HCIT requires proof by a preponderance of the evidence.
Where does evidence cross the line, so to speak, from preponderance to clear and convincing? When do you know you have enough.to tip the scales?
The latest pronouncement on the subject of which I am aware came in the case of Mississippi Commission on Judicial Performance v. Shoemake, handed down by the MSSC on April 14, 2016, in which the court said:
¶26. “Clear and convincing evidence” is such a high evidentiary standard that it surpasses even the standard of “overwhelming weight” of the evidence. In Interest of C.B., 574 So.2d 1369, 1375 (Miss. 1990); Moran v. Fairley, 919 So. 2d 969, 975 (¶ 24) (Miss. Ct. App. 2005), certiorari dismissed as improvidently granted. The United States Supreme Court has placed an “intermediary standard” between “mere preponderance of the evidence” and “beyond a reasonable doubt.” Addington v. Texas, 441 U.S. 418, 423-24, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). In Carver, 107 So. 3d at 969-70 (¶ 20), we cited the Fifth Circuit’s “useful definition” of the “clear and convincing” evidentiary standard. Clear and convincing evidence is
[t]hat weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.
Id. (citing In re Medrano, 956 F. 2d 101, 102 (5th Cir. 1992) …
That’s a lot of words to throw around if you have to argue or brief the point, but when you are in that position it’s better to have more words than fewer.
Still, it seems to be a somewhat elusive concept, susceptible to second-guessing on appeal. It brings to mind the US Supreme Court case Jacobellis v. Ohio, in which Justice Potter Stewart concurred, opining that all obscenity was constitutionally protected except “hard-core pornography,” the definition of which he rendered famously thus:
“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” [Emphasis added]
Maybe clear and convincing evidence is something that we just “know it when we see it.” Like hard-core pornography. Sort of.
If you think that “clear and convincing” is somewhat touchy-feely, try to stretch your brain around “beyond a reasonable doubt.” In fact, I challenge you to find a Mississippi case that defines the concept. I once defended a client in Justice Court on a charge of malicious destruction of personal property. The State had circumstantial evidence placing my client at the scene where before he appeared the property was undamaged, and after he left it was damaged. We had an eyewitness who was there and testified he watched the defendant the whole time, and he never touched or even came near the damaged item. The judge said, “I have grave doubts that this man did it, but I find him guilty.” So a grave doubt is still beyond a reasonable doubt, I guess. Good luck finding any authority on grave doubt.