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.

§ 4 Responses to Pinning Down the Elusive “Clear and Convincing” Concept

  • Some more dubious C&C equivalents:

    “In this case has it been established by clear and convincing evidence (which is about the same as saying beyond a reasonable doubt) that Jones did in fact talk with Coggin on the telephone?” Stegall v. WTWV, Inc., 1992 Miss. LEXIS 781 (Miss. Dec. 10, 1992) (Hawkins, P.J., dissenting from denial of reh’g).

    ‘Clear and convincing evidence is of such a high order that “this Court held that the ‘overwhelming weight of the evidence’ falls short of being ‘clear and convincing.'”‘ Phillips Brothers, LP v. Winstead, 129 So. 3d 906, 915 (Miss. 2014).

    This holding ultimately rests on a 1949 case that cited no authority for its holding, but the interesting thing to me is that the distinction seems to go beyond the *weight* of the evidence to its *quality*:

    ‘In our opinion the overwhelming weight of the evidence in a case might be for a party charging fraud in procuring a release, and such evidence still falls short of being “clear and convincing.” The two terms are not synonymous, and a party charging fraud, even if he attain the degree of overwhelming weight of the evidence, its character must be further measured by the test, — is it clear and convincing? The evidence for appellee is neither overwhelming nor clear and convincing in the case at bar, as to the release.’ Aponaug Mfg. Co. v. Collins, 207 Miss. 460, 473 (1949).

    That sounds to me like it’s not about the weight so much as, okay, that’s a lot of evidence, but it still doesn’t clearly convince me.

    Even more fun: the Aponaug Court went on to say: “The evidence for appellee is neither overwhelming nor clear and convincing in the case at bar, as to the release.” So was that bit just quoted above … merely dicta?

    And then there’s the feds:

    “Because the evidence in this case was overwhelming, it is evident that the facts related to the enhancement were established by clear and convincing evidence.” United States v. Gonzalez, 492 F.3d 1031, 1040 (9th Cir. 2007).

    “… the record contains clear and convincing evidence — overwhelming evidence, to call a spade a spade …” Anderson v. Cryovac, Inc., 862 F.2d 910, 927 (1st Cir. 1988).

    Alexander v. Warren, Arkansas, School Dist., 464 F.2d 471, 474 (8th Cir. 1972) (declining party’s invitation to define C&C as > overwhelming).

  • ” “Clear and convincing evidence” is such a high evidentiary standard that it surpasses even the standard of “overwhelming weight” of the evidence.”

    There are cases that say this, but I think they’re a minority that keep repeating one particularly bad formulation. Do y’all really think of “overwhelming evidence” as *less* than what’s required to prove fraud, etc.?

  • randywallace says:

    A requested instruction on reasonable doubt was before the COA on oral argument yesterday. The defendant requested the instruction and it was denied by the trial court (along with EVERY instrurction offered by the defendant). The COA appeared very sympathetic to the argument for the reasonable doubt instruction. However, it will be interesting to see how the COA handles prior MSSC precedent holding “a definition of reasonable doubt is not a proper instruction for the jury; reasonable doubt defines itself.” Fulgham v. State, 46 So.3d 315,
    332 (¶46) (Miss. 2010).

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