EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, November 26, 2014

Beast of Burden: Probable Cause vs. Preponderance of the Evidence in Ferguson

I was just watching CNN, and Chris Cuomo was talking to Paul Callan about a possible civil suit against Police Officer Darren Wilson. This prompted a discussion of the different burdens of proof at a grand jury hearing (probable cause) and a civil trial (preponderance of the evidence). Callan claimed that the burdens of proof were the same or at least virtually identical. Cuomo claimed that probable cause is a lower burden of proof than preponderance of the evidence. So, why was right?

Cuomo. Preponderance of the evidence is more likely than not, i.e., 50.1%. If Michael Brown's family sued Darren Wilson for wrongful death, they would have to prove that it was more likely than not that Wilson was liable. Meanwhile, "[p]robable cause has a lower threshold of proof than proof beyond a reasonable doubt or by a preponderance of the evidence, and has been defined as "'a state of facts as would lead a [person] of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion'" of the fact to be proved." People v. Hardacre, 109 Cal.Rptr.2d 667 (Cal.App. 6 Dist. 2001); see also State v. Pledger, 896 P.2d 1226 (Utah 1995) ("The committing magistrate has the responsibility to determine probable cause at a preliminary hearing. This standard is lower, even, than a preponderance of the evidence standard applicable to civil cases.").

Indeed, check out this excerpt from U.S. v. Agriprocessors, Inc., 2009 WL 595562 (N.D.Iowa 2009):  

The government's cross-examination of Ms. Kuehn was highly effective in that it exposed flaws in her reasoning, as well as her deep unfamiliarity with the federal grand jury process. For example, Ms. Kuehn did not even know how to define probable cause, the quantum of evidence a grand jury must possess to validly return an indictment against a target of an investigation. Ms. Kuehn erroneously equated the probable cause standard with the preponderance of the evidence standard.



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I have been struggling with this because it is counterintuitive. The meaning of the word “probable” itself is “likely to occur or prove true.” Therefore, something that is less than 50% likely is, in fact, unlikely, and, consequently, not probable. The 4th Amendment of the Constitution sets the standard of “probable cause,” and what gives us the right to change the meaning of the word “probable” to include “probably not”?

The U.S. Supreme Court defines probable cause as “where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.” Brinegar v. United States.

On the surface, this sounds like “more likely than not.” However, I believe this definition actually explains how you can accord the term something less than “preponderance of the evidence” WITHOUT contradicting the plain meaning of “probable.” As I read it, it is not whether YOU, as the officer or as a member of a grand jury, believe that the crime more likely than not happened, it is whether, given the evidence, COULD SOME “man of reasonable caution” (not necessarily you) believe that the crime more likely than not happened. There is some variation among persons of “reasonable caution,” and some may believe more readily than others. By looking at it from the perspective of such a man, you can find probable cause where you personally may not believe that a crime more likely than not happened.

Voila, there you have something less than the “preponderance of evidence” standard without “probable cause” being a misnomer.

Posted by: Greg | Nov 10, 2017 8:51:02 PM

I think it also has to do with prior probability. Given nothing, the prior probability person X committed crime Y is extremely small. It doesn't begin as my 50/50. On the contrary it probably begins at ~0%. So therefore the change in likelyhood after presenting evidence would be quite a bit bit if it moved from ~0 to say 30%. That could be probable cause to suspect something might be true, but still be less than 50/50

Posted by: Paul | Nov 13, 2017 2:34:25 AM

(Unfortinately it seems that merely being considered for indictment by a grand jury is considered plenty evidence in and of itself for that same grand jury to indict. It's like the opposite of a Catch 22.

Posted by: Paul | Nov 13, 2017 11:47:24 AM

If a jury analyzes the evidence and finds a 51 percent chance that a car accident caused your shoulder injury, they should award a verdict granting you damages.

Posted by: Misney Law | Jan 24, 2022 11:47:41 PM

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