Getting it Right: Standards of Evidence by Karen A. Wyle

Author and attorney Karen A. Wyle

[This is part 3 of a three part “Getting it Right” series by author and attorney Karen A. Wyle. This series is aimed at helping authors understand and add meaningful and convincing detail in writing courtroom drama. Part 1 can be found here and part 2 can be found here.]

Any writer planning to deal with criminal trials should understand the reasonable doubt standard of proof. And anyone writing about other sorts of trials should realize that the reasonable doubt standard doesn’t apply.

Only in criminal trials must the prosecution prove the defendant’s guilt by the well-known standard, “beyond a reasonable doubt.” Depending on the crime(s) with which the defendant is charged, the prosecution may have to prove a list of particular facts (“elements”) about the crime beyond a reasonable doubt.

This standard does not mean “beyond any conceivable doubt.” Different judges in different states will define the term slightly differently, but here’s one fairly typical example of a jury instruction on reasonable doubt, from Connecticut.

“The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, a guess or mere conjecture. It is not a doubt raised by anyone simply for the sake of raising a doubt. It is such a doubt as, in serious affairs that concern you, you would heed; that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance. It is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence. It is doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.”

In most civil trials, whoever has the burden of proof on a particular issue has to prove the point by “a preponderance of the evidence,” essentially 50% plus any amount. This standard is viewed as most appropriate where money or property is at stake, where no fundamental rights are involved, and where society has no great stake in who ends up winning.

An intermediate standard, applied in different sorts of cases in different states, is “clear and convincing evidence.” This may apply where fundamental rights are involved, such as parental rights or freedom of speech. For example, this standard is the constitutionally required minimum in termination of parental rights cases (cases where the government is seeking to permanently sever the connection between parent and child). Some states apply this burden of proof in less extreme parental rights cases, e.g. cases where a grandparent is suing for visitation with a grandchild over the parent’s objection. (The grandparent, not the parent, must prove his/her case by clear and convincing evidence in these jurisdictions.)

The jury will find out about the applicable standard by listening to jury instructions.

A jury has to decide what facts have been proved, and then figure out who should win and lose based on those facts. Who should win or lose, given the facts, depends on the law. How does the jury know what the law is? Supposedly, the judge explains it to them by giving them jury instructions. These are usually read aloud after all the evidence is in and after the attorney’s closing arguments. Then (at least in many courtrooms) they’re given to the jury in writing for use during jury deliberations.

The problem is that until recently, and to this day in many places, jury instructions are made up of often-impenetrable legalese. Judges and attorneys have typically joined in pretending that the jurors understood the instructions and would apply the law correctly as a result. One could write some interesting fiction about how jurors try to deal with a pile of verbiage they can’t understand, given the weighty responsibility they’ve been given. (Hmmmm….)

More and more jurisdictions are replacing traditional jury instructions with “plain English” jury instructions. The latter may not always be crystal clear, but they increase the chance that a jury will actually follow the applicable legal rules.

Here are a couple of “before” (traditional) and “after” (plain English) jury instructions.

Traditional version: Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn. A factual inference is a deduction that may logically and reasonably be drawn from one or more facts established by the evidence.

Plain English version: Some evidence proves a fact directly, such as testimony of a witness who saw a jet plane flying across the sky. Some evidence proves a fact indirectly, such as testimony of a witness who saw only the white trail that jet planes often leave. This indirect evidence is sometimes referred to as “circumstantial evidence.” In either instance, the witness’s testimony is evidence that a jet plane flew across the sky.


Traditional Version: Causation – Strict Products Liability If you decide that the product was defective or unreasonably dangerous, you must consider whether the product caused or enhanced Plaintiff’s injuries. To meet this burden, Plaintiff must only show that the greater likelihood or probability that the harm complained of was due to the defective nature of the product. Conduct of the Defendant is irrelevant to this inquiry. The only focus is on the product itself. The product must be a legal cause of Plaintiff’s injury. If the harm would have occurred anyway, then the Defendant is not liable. It does not matter whether other concurrent causes contributed to Plaintiff’s injuries, so long as you find the product contributed to the harmful result in a material or important way. That this contribution was not slight, insignificant or tangential to causing the harm.

Plain English Version:

If you find the lawnmower was defective, you must decide whether it caused or worsened Mr. A’s injuries. Mr. A must prove that it is more likely than not that the defective nature of the lawnmower, and not something else, caused his injuries. If you find that Mr. A would have been injured even if the lawnmower was not defective, ABC Manufacturing, Inc. is not responsible for Mr. A’s injuries.


Now that we’ve talked about trials, let’s talk about what happens after someone wins and someone loses at trial. Fairly often, the loser will appeal the judgment to a higher court.

An appeal is not a factual do-over. Only under very limited circumstances may a party offer any new evidence on appeal. (One such instance is when the appellant — the party challenging the trial court decision — contends that he/she/it should get a new trial because of just-discovered evidence that could not, even with due diligence, have been found in time for use at the trial.) Appellate courts also recognize that the trial judge, who sees and hears the witnesses, is in a much better position to assess their testimony than an appellate judge reviewing a “cold” record. In some states, the appellate court will look at the evidence presented at trial with a fresh eye, judging the weight of the evidence each way, while still deferring somewhat to the trial judge’s assessment. This is called de novo review. In other states, probably the majority, the appellate court will accept the trial court’s call on any disputed factual issue, as long as there is any evidence that supports that call.

Appellate courts look at the transcript of the trial court proceedings and the evidence presented there, as well as whatever papers (motions and such) the attorneys filed with the trial court. The attorneys write “briefs” — distinctly un-brief presentations of why the trial court did or didn’t get it right. Some appellate courts typically hold oral argument, where each attorney has some period of time (typically twenty or thirty minutes) to highlight important points and answer the judges’ questions. (Sometimes the attorney will barely get through a sentence or two before being peppered with questions.) In other appellate courts, oral argument is rare, with the court deciding the case based only on the written materials.

An appellate court may “reverse” a trial court judgment, saying it should come out the other way, or “remand” the case, sending it back to the trial court for a new trial on one or more issues or for some further trial court action (such as a more complete explanation of why the trial court decided as it did).

I’ve barely scratched the surface of what you might want or need to know before diving into fiction about lawyers, judges, courtrooms, etc. So finally, here are two pieces of advice:

1. Find a glossary of legal terms. Just reading through it will not only prepare you to get the language right, but give you a capsule legal education.

2. When you’re trying to find your way through some legal maze, get a guide. Ask a lawyer to explain things to you. If you know any lawyers, they’re probably sick of being expected to answer their friends’ legal questions for free — but sharing their expertise with a novelist might well be a refreshing change. If you’re approaching a stranger, you may have to pay for a short consultation — but you might get away with simply thanking the lawyer in your Acknowledgements section. (Find out ahead of time whether the lawyer expects to be paid for answering your questions.)

Court is adjourned!


Karen A. Wyle is the author of the science fiction novel Twin-Bred. She is an attorney with more than thirty years’ experience. Learn more about Wyle and her work at her Amazon Author Page, her website, or her blog, Looking Around. Learn more about her law practice at her legal website. You can also find her on Facebook and follow her on Twitter.


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