Here are the most common and some obscurely used evidentiary burdens in Utah. Where they are used, who uses them and what really happens.
The legal definition: Reasonable suspicion means suspicion based on specific, articulable facts drawn from the totality of the circumstances facing the officer at the time of the stop, which facts are most frequently based on an investigating officer’s own observations and inferences. State v. Navarro, 2017 UT App 102, ¶ 17, 400 P.3d 1120, 1124.
The reality definition: A really low standard, satisfied by nearly any two distinct, objective facts observed by a police officer. Sometimes one objective fact can satisfy the reasonable suspicion standard. This is the lowest evidentiary standard in US law.
Reasonable suspicion is one sniff of pot in the air by a trained police officer. Reasonable suspicion is seeing a gun and the police officer knowing you are a felon. Reasonable suspicion is smelling alcohol on your breath and asking you to do field sobriety testing.
Where it is Used and by Who: Law enforcement officers of all kinds commonly use reasonable suspicion when making arrests on the street. Reasonable suspicion was created in 1968 by Terry v. Ohio, a United Stated Supreme Court case. Terry gave officers the ability to briefly stop and detain people on the streets without violating the US and state constitution regarding search and seizure.
It’s called being “Terry Stopped.” It has been a staple in law enforcement since 1968. See Terry v. Ohio, 392 U.S. 1. Utah’s criminal justice and districts court review whether the police had reasonable suspicion during motions to suppress.
Officers using reasonable suspicion generally are acting on a reactive basis. Meaning they are patrolling the streets, observing possible criminal activity afoot, detaining, frisking and see if further criminal activity is to be found. FBI, postal investigators or other law enforcement which target criminal organizations for years use reasonable suspicion less often than state law enforcement like sheriffs, municipal police or the Utah Highway Patrol.
Once you are Terry Stopped, the information the officer gathers often morphs into Probable Cause which is needed for a warrantless arrest under federal and Utah law.
The legal definition: Utah’s jury instruction which is based on Utah law reads:
“CV1304 Probable Cause.
Probable cause does not require that the officer had proof beyond a reasonable doubt, or even proof by a preponderance of the evidence. Probable cause exists when an officer has knowledge of facts and circumstances that are of such weight and persuasiveness as to convince a prudent and reasonable person of ordinary intelligence, judgment, and experience that it is reasonably likely that a crime has been committed and the person arrested committed that crime.
The existence of probable cause is measured as of the moment of the arrest, not on the basis of later developments. Thus, the ultimate resolution of the criminal charges is irrelevant.
The reality definition: Legally probable cause is slightly higher than reasonable suspicion, but in practice they are both really, really low burdens of proof that the government must show prior to arresting you.
In reality when a Provo road patrol officer sees your headlight out, that is probable cause to cite you for a Utah Traffic Code violation of no headlight. A lawful stop for a broken headlight then leads to a DUI arrest once the office smells alcohol on your breath. Or finds the drugs in plain view on passengers seat.
In reality when you failed to stop when exiting a business parking lot to a public street, that is probable cause you violated the Utah Traffic Code. This allows the police office to stop your vehicle, smell your breath, and start asking questions. The stop can be a legal pretext for the actual DUI investigation. Not because they care so much about Utah Code 41-6a-907 (failure to stop from private property to public)
Where it is Used and by Who: Police. Law enforcement, postal investigators, FBI, the Provo police department, etc. Most commonly used on street patrols when criminal actively is afoot and by city/county detectives. A very reactive standard.
Probable cause is used in search warrants and bench warrants. In modern days police officers digitally petition the judge with an affidavit of probable cause. Upon review the judge determines if probable cause exists to issue an arrest warrant or search warrant. Requests for warrants happen 24/7. Our United States and Utah Constitution requires probable cause.
Because the our constitutions and freedoms are so important, our constitutions are restated now:
United States Constitution. Amendment IV (1791 enacted)
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Utah Constitution. Article I, Section 14 [Unreasonable searches forbidden — Issuance of warrant.]
The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon
probable cause supported by oath or affirmation, particularly describing the place to be searched,
and the person or thing to be seized.
The legal definition: Utah has defined it to mean: “We have defined substantial evidence as that quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion. Mountain Fuel Supply Co. v. Pub. Serv. Comm’n of Utah, 861 P.2d 414, 428 (Utah 1993)
Substantial evidence is primarily an evidence burden used in administrative law. Whenever a Utah administrative agency makes a decision affecting your rights you generally have a right to judicial review. Judicial review is where the district court or appellate court reviews the decision of the administrative agency to see if its decision is supported by substantial evidence.
Substantial evidence is also currently used in Utah bail statute which dictates when judges can grant, deny or modify bail. See Utah Code 77-20-2.
The reality definition: Substantial evidence on judicial review is a pretty low burden for the administrative agency to pass. Substantial evidence is lower than a preponderance of the evidence.
Where it is Used and by Who: Lawyers who work in administrative law, appealing agency decisions or petition for agency change. Think oil and gas agency decisions affecting large amounts of money, The Southern Utah Wilderness Society challenging federal and state land use agencies or mining operations in environmentally sensitive areas.
The legal definition: Preponderance of evidence – Evidence which is (even slightly) of greater weight or more convincing than the evidence which is offered in opposition to it.
Utah’s jury instruction which is based on Utah case law reads:
CV117 Preponderance of the evidence.
You may have heard that in a criminal case proof must be beyond a reasonable doubt, but this is not a criminal case. In a civil case such as this one, a different level of proof applies: proof by a preponderance of the evidence.
When I tell you that a party has the burden of proof or that a party must prove something by a “preponderance of the evidence,” I mean that the party must persuade you, by the evidence, that the fact is more likely to be true than not true.
Another way of saying this is proof by the greater weight of the evidence, however slight. Weighing the evidence does not mean counting the number of witnesses nor the amount of testimony. Rather, it means evaluating the persuasive character of the evidence. In weighing the evidence, you should consider all of the evidence that applies to a fact, no matter which party presented it. The weight to be given to each piece of evidence is for you to decide.
After weighing all of the evidence, if you decide that a fact is more likely true than not, then you must find that the fact has been proved. On the other hand, if you decide that the evidence regarding a fact is evenly balanced, then you must find that the fact has not been proved, and the party has therefore failed to meet its burden of proof to establish that fact.
Now I will instruct you in more detail about the specific elements that must be proved.
The reality definition: A 51 percent burden commonly used in civil cases for money damages. It is like going 51 yards of the football field, but often a party must go at least convincing 75 yards to get the win with the jury.
In reality if the jury doesn’t like your client, the normal 51 percent standard does turns into proof beyond a reasonable doubt.
Where it is Used and by Who: A preponderance is also used in some juvenile welfare cases, civil protective orders, child protective orders and general civil matters. Jurors in most civil cases make most of their decisions based on a preponderance of the evidence.
The legal definition:
CV118 Clear and convincing evidence.
Some facts in this case must be proved by a higher level of proof called “clear and convincing evidence.” When I tell you that a party must prove something by clear and convincing evidence, I mean that the party must persuade you, by the evidence, to the point that there remains no serious or substantial doubt as to the truth of the fact.
Proof by clear and convincing evidence requires a greater degree of persuasion than proof by a preponderance of the evidence but less than proof beyond a reasonable doubt.
I will tell you specifically which of the facts must be proved by clear and convincing evidence.
The reality definition: Something bigger and clearer than a 51 percent preponderance standard, but less than beyond a reasonable doubt. A very mushy standard that can be used to reject people by manipulating the proofs.
Where it is Used and by Who: Utah child welfare cases where the government is terminating parental rights forever. An exception exists to termination of parental rights where proof beyond a reasonable doubt must be used to terminate parental rights to children of Native American decent. See the Indian Child Welfare Act, a federal law that seeks to keep Indian children with Indian families. It was passed in 1978.
Clear and convincing evidence is used to prove punitive damages, unless a DUI driver was involved, then only a preponderance standard applies. See Utah Code 78B-8-201. Beyond a Reasonable Doubt
The legal definition:
CR103 Proof Beyond a Reasonable Doubt.
The prosecution has the burden of proving the defendant guilty beyond a reasonable doubt. Some of you may have served as jurors in civil cases, where you were told that it is only necessary to prove that a fact is more likely true than not true. In criminal cases, the prosecution’s proof must be more powerful than that. It must be beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find (him) (her) guilty. If, on the other hand, you think there is a real possibility that (he) (she) is not guilty, you must give (him) (her) the benefit of the doubt and find (him) (her) not guilty.
The reality definition: A fairly difficult standard to prove. The prosecutor makes it appear that you just can’t have any real doubts. The criminal defense attorney states it is the Mount Everest of legal burdens where you can’t even slip a piece of paper between the proofs because it is so tight.
In reality if your client is not liked or is accused of really heinous and terrible crimes, especially involving children, it seems more a preponderance.
Having a really persuasive lawyer matters greatly. A good criminal defense attorney will education the attorneys on how hard the beyond a reasonable doubt standard is. A plaintiff’s personal injury car accident attorney will tell the jury how light the burden is to prove their money damages.
Having a likeable, persuasive attorney can make the difference on tight cases.