Evidentiary Standard of Proof In California
The standard of proof represents "'an attempt to instruct the fact finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.'
As the seriousness of the consequences resulting from an erroneous judgment increases, a stricter standard of proof is required to mitigate against the possibility of error." (Conservatorship of Sanderson (1980) 106 Cal. App. 3d 611, 619, 165 Cal. Rptr. 217.)
The California Supreme Court in Cynthia D. v. Superior Court (1993) 5 Cal. 4th 242, 851 P.2d 1307, cited the United States Supreme Court's statement that the evidentiary standard of proof "reflects the weight of the private and public interests affected as well as a societal judgment about how the risk of error should be distributed between the parties.
In a civil dispute over monetary damages the preponderance of the evidence standard reflects society's minimal concern with the outcome and a conclusion that the parties should bear the risk of error in roughly equal fashion. . . . on the other hand, . . . the standard of proof required in an action to terminate [fundamental liberty] rights requires a balancing of the private interests affected, the risk of error created by the state's chosen procedure, and the countervailing governmental interest supporting the procedure." (Cynthia D. v. Superior Court, supra, 5 Cal. 4th at p. 251, [discussing standard of proof for termination of parental rights], citing Santosky v. Kramer (1982) 455 U.S. 745 [71 L. Ed. 2d 599, 102 S. Ct. 1388];
see also, Cruzan v. Director, Mo. Health Dept., supra, 497 U.S. at pp. 343-344 [111 L. Ed. 2d at pp. 282-283] [state may require clear and convincing evidence standard in proceedings to withdraw life-sustaining treatment from incompetent patient].)
'"Clear and convincing" evidence requires a finding of high probability.' Such a test requires that the evidence be '"so clear as to leave no substantial doubt;" "sufficiently strong to command the unhesitating assent of every reasonable mind."A preponderance of the evidence standard, on the other hand, 'simply requires the trier of fact "to believe that the existence of a fact is more probable than its nonexistence. . . ."" ( Lillian F. v. Superior Court (1984) 160 Cal. App. 3d 314, 320, 206 Cal. Rptr. 603.)