It is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, a translation of which is: "the necessity of proof always lies with the person who lays charges.
[9] "Reasonable indication (also known as reasonable suspicion) is substantially lower than probable cause; factors to consider are those facts and circumstances a prudent investigator would consider, but must include facts or circumstances indicating a past, current, or impending violation; an objective factual basis must be present, a mere 'hunch' is insufficient.
[11] Reasonable suspicion is a low standard of proof to determine whether a brief investigative stop or search by a police officer or any government agent is warranted.
[12] The state must justify the seizure by showing that the officer conducting the stop had a reasonable articulable suspicion that criminal activity was afoot.
Probable cause is a higher standard of proof than reasonable suspicion, which is used in the United States to determine whether a search, or an arrest, is unreasonable.
Probable cause can be contrasted with "reasonable articulable suspicion" which requires a police officer to have an unquantified amount of certainty the courts say is well below 51% before briefly detaining a suspect (without consent) to pat them down and attempt to question them.
[citation needed] Though it is beyond the scope of this topic, when courts review whether 51% probable cause certainty was a reasonable judgment, the legal inquiry is different for police officers in the field than it would be for grand jurors.
In Franks v. Delaware (1978), the U.S. Supreme Court held that probable cause requires that there not be "reckless disregard for the truth" of the facts asserted.
This proof standard is often used in administrative law settings and in some states to initiate Child Protective Services (CPS) proceedings.
It is also the standard of proof by which the defendant must prove affirmative defenses or mitigating circumstances in civil or criminal court in the United States.
"[16] The author goes on to affirm that preponderance is "merely enough to tip the scales" towards one party; however, that tilt need only be so slight as the weight of a "feather."
MSPB defines the standard as "The degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue."
For example, a prisoner seeking habeas corpus relief from capital punishment must prove his factual innocence by clear and convincing evidence.
[19] New York State uses this standard when a court must determine whether to involuntarily hospitalize a mentally ill patient or to issue an Assisted Outpatient Treatment Order.
Once raised by the defense, the state must present its evidence in a pre-trial hearing, showing that the statutory prerequisites have not been met, and then request that the court deny a motion for declaration of immunity.
Clear and convincing proof means that the evidence presented by a party during the trial must be highly and substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its factuality.
[27] Further to this notion of moral certainty, where the trier of fact relies on proof that is solely circumstantial, i.e., when conviction is based entirely on circumstantial evidence, certain jurisdictions specifically require the prosecution's burden of proof to be such that the facts proved must exclude to a moral certainty every reasonable hypothesis or inference other than guilt.
The main reason that this high level of proof is demanded in criminal trials is that such proceedings can result in the deprivation of a defendant's liberty or even in their death.
However, where the law does not stipulate a reverse burden of proof, the defendant need only raise the issue and it is then for the prosecution to negate the defence to the criminal standard in the usual way (for example, that of self-defence[29]).
As the above description of the American system shows, anxiety by judges about making decisions on very serious matters on the basis of the balance of probabilities had led to a departure from the common law principles of just two standards.
[39] In Australia, the 'balance of probabilities' involves considerations that the evidence required to establish a fact at the civil standard will vary with the seriousness of what is being alleged.
[44] The Briginshaw principle was articulated by Dixon in that case in these terms:[45] ...it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
[49][50][51] Melbourne Law School professor Jeremy Gans, has noted that for particularly serious allegations, such as sexual assault, "It's hard to see how the Briginshaw principle is much different to beyond reasonable doubt".
[52] The decision has also been noted for affecting the ability of litigants to seek redress in anti-discrimination lawsuits, due to the seriousness of such allegations.
However, when exceptions arise and the burden of proof has been shifted to the defendant, they are required to establish a defense that bears an "air of reality".
[53] Depending on the legal venue or intra-case hearing, varying levels of reliability of proof are considered dispositive of the inquiry being entertained.
If the subject threshold level of reliability has been met by the presentation of the evidence, then the thing is considered legally proved for that trial, hearing or inquest.
The defendant is presumed to have fled the scene of a crash, to avoid civil or criminal liability, if the prosecution can prove the remaining essential elements of the offense.
... [Nonetheless,] [a]bsent some reason to believe that Congress intended otherwise, therefore, [the Supreme Court] will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief.