INTRODUCTION III. Levels of proof

I will state my opinions and try to persuade the reader to agree with them. It is possible that none of these opinions can and/or will be conclusively proved or disproved. Alternatively, such proof may come many years in the future when historians piece everything together. In any event, I concede that I am not able to conclusively establish my position. By the same token, I do not believe that a position opposite of mine can be conclusively established.

Here's an example of what I am talking about: Secretary of State Colin Powell's presentation to the U.N. Security Council on February 5, 2003, tried to convince the world that there is a connection between Iraq and terrorism, and yet his evidence was inconclusive at best. Based on that evidence, one could conclude there is such a link, but one could also conclude that Powell merely provided a basis for speculation. So how does one reach a decision on this matter? In other words, how strong--or how weak--does the evidence have to be in order to persuade a person to choose one conclusion or the other?

In our judicial system, the answer depends in part on what level of proof is being applied in a given case. For instance, most people recognize the “beyond a reasonable doubt” standard used in criminal cases. This is a very high level of proof which "precludes every reasonable hypothesis except that which it tends to support." [1] In civil law, most issues are decided by a “preponderance of the evidence,” which technically means “the greater weight and degree of credible evidence.” [2] In layman's terms, a preponderance of the evidence means “more likely than not,” [3] which in turn means that if the evidence shows that an allegation is 51% likely to be true, then it is true under the “preponderance of the evidence” standard. Other issues in civil law require the “clear and convincing” standard, which is "Evidence indicating that the thing to be proved is highly probable or reasonably certain. This is a greater burden than preponderance of the evidence...but less than evidence beyond a reasonable doubt." [4]

Criminal law uses the high demand of proving guilt beyond a reasonable doubt because of the seriousness of the consequences. Criminal prosecutions can result in a prison sentence or, in some cases, death to the offender. If we apply such a high standard of proof to matters that affect one person, why should we be satisfied with a lesser standard on issues that will affect every American for years to come?

There is a reason for this discussion. As with many decisions, the decision on whether to go to war with Iraq could not have been based on absolute, conclusive proof. Part of what I am asking the reader to do is look at the evidence as it existed prior to the war and decide if it was sufficient to warrant the war. In order to do that, one must use some level of proof--a threshold that once reached persuades one to decide to go to war. Will it be a mere preponderance of the evidence? Or will it be “clear and convincing?” Or will it be “beyond a reasonable doubt?” Keep these questions in mind as you read, and do not be surprised if your answer changes as you go.
_________________________________________________

1. Black's Law Dictionary, 8th ed. 2004.

2. R&R Contractors v. Torres, 88 S.W.3d 685, 695 (Tex. App.--Corpus Christi 2002, pet. dism'd by agreement); see also Black's Law Dictionary, 8th ed. 2004.

3. In re Jane Doe, 19 S.W.3d 249, 258 (Tex. 2000) (Enoch, J. concurring).

4. Black's Law Dictionary, 8th ed. 2004.