The "Clear and Convincing" Evidence Standard in California (2024)

“Clear and convincing evidence” is evidence that tells a judge or jury that it is highly probable that a fact is true. The term refers to a standard of proof used in both civil and certain phases of criminal court cases. States vary as to when, or in what types of cases, a party has to satisfy the clear and convincing evidence standard.

Depending on the type of case, jurisdictions may also adopt three other standards of proof when resolving a civil or criminal matter. These are the:

1. preponderance of the evidence standard,
2. substantial evidence standard, and
3. beyond a reasonable doubt standard.

Note that a person filing a civil lawsuit can learn which standard of proof applies to his/her case by researching the issue or speaking with an attorney.

If a person is a juror in a civil case, the judge presiding over the matter will provide jury instructions that inform of the applicable level of proof.

All jurisdictions apply the beyond a reasonable doubt standard in criminal trials.

Our California criminal defense attorneys will highlight the following in this article:

• 1. What is clear and convincing evidence?
• 2. Are there other evidentiary standards?
• 3. How does a person know what burden to meet?
• 4. What is the law in California?
• Additional reading

1. What is clear and convincing evidence?

The clear and convincing evidence standard is a burden of proof that parties must meet typically in civil lawsuits.

Plaintiffs will satisfy their burden by presenting evidence that shows that it is highly probable that a fact is true. In other words, a trier of fact (or a judge or jury) must be able to use the evidence presented to determine that it is highly and substantially more likely that a particular fact is true rather than untrue.¹

States vary in terms of when this standard will apply. With that said, however, plaintiffs usually have to meet this level of proof in civil cases involving:

• fraud,
• restraining orders,
• the probate of wills,
• withdrawing life support, and
• conservatorships.²

In comparison to other standards of proof, convincing proof is a higher standard of proof when compared to the preponderance of the evidence standard. However, it is a lower standard to meet than the beyond a reasonable doubt legal standard.

2. Are there other evidentiary standards?

States usually use three other standards of proof in civil and criminal cases. These include:

1. the preponderance of the evidence standard,
2. the substantial evidence standard, and
3. beyond a reasonable doubt.

States may also use these standards in appellate courts or when a case gets resolved in a court of appeal.

Preponderance of the evidence

A party meets this standard upon showing a fact finder that it is more likely than not that a fact is true. “More likely than not” means that it is more than 50 percent likely that a fact is true.

Clear and convincing evidence is considered a higher burden of proof than the preponderance of the evidence standard. This means it is harder to show clear and convincing evidence as opposed to a preponderance of the evidence.

A preponderance of the evidence standard applies in most civil lawsuits, including those involving a personal injury and violations of civil liberty.

Substantial evidence

Substantial evidence is a standard that requires a party to show such relevant evidence that a reasonable mind could accept this evidence as adequate to support a conclusion. The standard requires more than a mere scintilla of evidence.³

This standard is often used in resolving administrative law issues at administrative hearings. During an administrative hearing, a judge reviews the decision made by a government agency.

For example, an administrative law judge may review a Department of Motor Vehicle’s decision to suspend a motorist’s driver’s license.

Appellate judges that review an administrative law judge’s decision also use this standard.

The standard is considered an intermediate standard, as it falls between a showing of probable cause and the preponderance of the evidence standard.

Note that “probable cause” is a requirement found in the Fourth Amendment. Courts usually find probable cause when they find there to be a reasonable basis for believing that a crime may have been committed. Police usually must have probable cause before they:

• make an arrest,
• conduct a search, or
• receive a warrant.⁴

Beyond a reasonable doubt

This is the highest standard of proof used in the legal system.

Under every state’s criminal laws, a prosecutor must prove in a criminal trial, beyond a reasonable doubt, that a defendant committed the crime charged to successfully convict that person of the offense.⁵

Jurisdictions differ in terms of how much evidence a prosecutor has to show to meet this standard.

Most, though, say it is not enough for a trial court to believe that a defendant is guilty of a crime. Rather, a prosecutor must present evidence that is so convincing of guilt that there is no question in the mind of the trier that the defendant committed the crime charged.

Courts sometimes say that this standard is met when a prosecutor can show, to a moral certainty, that the defendant committed a crime. This means the evidence supports only one logical conclusion, and that is that the defendant committed the crime charged.⁶

Note, however, that the standard does not require a prosecutor to show, to an absolute certainty, that the accused committed an offense.

3. How does a person know what burden to meet?

If a person is filing a lawsuit, then that party can learn what burden of proof he/she must meet by researching the matter.

In many instances, a person can learn what standard of proof applies to their case by researching on the internet.

A party can also discover the applicable level of proof by speaking with an attorney. Most attorneys provide free consultations, so parties can learn what standard applies without spending a dime.

Note that some cases may involve multiple issues or more than one claim. In these situations, more than one standard may apply to the case.

Note, too, that if a person is a juror who must decide a case, the judge will provide jury instructions that advise on the burden of proof for the person to use in deciding the matter.

4. What is the law in California?

California law generally follows the discussion set forth above.

Clear and convincing evidence is a showing that there is a high probability that a fact is true, as opposed to something simply being more likely than not.⁷

This standard is often used in California personal injury cases where the plaintiff seeks punitive damages in addition to compensatory damages. To receive punitive damages, a plaintiff must show, by clear and convincing evidence, that the defendant acted with either:

• malice,
• oppression, or
• fraud.

In normal personal injury cases, where punitive damages are not an issue, a plaintiff only has to prove a case by a preponderance of the evidence.⁸

This means it is more likely true than not true that what the plaintiff claims happened did in fact happen.⁹

Under California law, “beyond a reasonable doubt” is defined as follows:

“It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”¹⁰

Additional reading

For more in-depth information, refer to these scholarly articles:

• Clear and Convincing Evidence: How Much Is Enough? – California Insurance Reporter.
• Evidence: Clear and Convincing Proof: Appellate Review – California Law Review.
• Dependency Proceedings: What Standard of Proof – an Argument against the Standard of Clear and Convincing – San Diego Law Review.
• Procedural Fairness for State Abuse Registries: The Case for the Clear and Convincing Evidence Standard – Journal of Gender Race and Justice.
• The Constitutional Case for Clear and Convincing Evidence in Bail Hearings – Stanford Law Review.