Defining burdens of proof can be hard. (What is "clear and convincing"?) But perhaps they're easier to understand than to define.

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It was the final block of instruction on day two of the basic skills course required of all newly admitted attorneys and Judge Justice looked out at a room full of faces showing information overload. Undaunted, the Judge began: "In case you haven't realized it yet, the law isn't as precise as mathematics, engineering, or even butchering. We're in the probability, weighing, and balancing business, but we don't use a calibrated scale.

"There is unavoidably some subjectivity, human fallibility, and lack of uniformity in interpreting and applying the standards we work with. A good example of that is in our topic today, 'burdens of proof.'

"From law school you remember that when I say 'burden of proof' I mean the duty of a litigant (the 'who' question) to establish a given proposition (the 'what' question) by a certain quantum of evidence (the 'how much' question). You may also hear judges speak of other burdens, such as the burden of pleading (which party must raise the issue), the burden of going forward with the evidence (the need to produce sufficient evidence to allow the issue to go to the fact finder), and the burden of persuasion (who loses if the quantum is not met).

"By the time of trial, the 'who' and 'what' questions should be resolved by agreement or pretrial decision. Today, I want to focus on the 'how much' question. How do we determine what the quantum is, define it, and understand it?

"It is important to start by asking how 'how much' is determined. It can be set by statute, court rule, or decision. Due process, equal protection, and weighing of interests all come into play.

"How confident in the correctness of his or her decision does the fact finder - the judge or jury - have to be? If absolute certainty were required to act, would it bring decision-making to a halt? Assuming there will be a certain amount of error in any human decision-making process, which party should bear that risk?

The greater the interest protected, the higher the burden

"The Illinois Supreme Court set forth the legal analysis and risk allocations in In Re D.T., 212 Ill 2d 347, 818 NE2d 1214 (2004):

The minimum standard of proof the due process clause permits reflects the weight of the private and public interests affected, as well as a societal judgment about how the risk of error should be allocated between the parties [cite]. "The more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision."

Id at 361, 818 NE2d at 1225, quoting Cruzan v Director, Missouri Dept of Health, 497 US 261, 283 (1990).

"In criminal cases, for example, the private interests of the defendant in liberty, property, and reputation are so great that society imposes the risk of error almost entirely on itself by requiring the state to meet a proof beyond a reasonable doubt standard. That high burden reduces the risk of finding an innocent person guilty but increases the risk of acquitting a guilty person.

"In civil cases, a lesser standard of 'preponderance of the evidence' is generally used. This burden allocates the risk of error roughly equally between the litigants, reflecting the view that the interests at stake are of relatively equal societal importance.

"In some cases, the interests at stake are deemed more substantial, requiring a higher standard called 'clear and convincing.' That standard is more than a preponderance but less than proof beyond a reasonable doubt. A party with a clear and convincing standard therefore shoulders a greater share of the risk of an erroneous determination.

"While logically these distinctions make some sense, at least with respect to who should bear the risk of error, they can be hard to define precisely. In Illinois we turn to the Illinois Pattern Jury Instructions for these definitions.

"The 'preponderance of the evidence' burden is defined in IPI Criminal 4.18 and IPI Civil 21.01 and requires the fact finder to be persuaded, considering all the evidence in the case, that the proposition is 'more probably true than not true.' The 'clear and convincing' burden is defined in IPI Criminal 4.19 as 'that degree of proof which, considering all the evidence in the case, produces the firm and abiding belief that it is highly probable that the proposition on which the defendant has the burden of proof is true.'

"While the state has the 'beyond a reasonable doubt' burden of proof in a criminal case (IPI Criminal 2.03), the IPI Committee (IPI Criminal 2.05 and 4.19 (Committee Notes)) and Illinois cases prohibit any instruction by the court or counsel further defining that phrase. Other states and federal courts have attempted, with mixed reviews, to further define these burdens.

Simple is best

"In each case the judge or jury must not only evaluate the credibility of and give appropriate weight to each piece of evidence, but must also determine whether the 'how much' burden (as the fact finder understands it) has been met. We refer to the terms preponderance of the evidence (POE), clear and convincing (CAC), and beyond a reasonable doubt (BRD) as though their meanings are self-evident. Interestingly, though, even experienced lawyers and judges cannot give an exact meaning or reach agreement as to the different proof standards.

"It is hard to believe a lay jury has a clear and identical understanding of the standards. They are concepts (like pornography and the reasonable man standard) we know when we see or hear but cannot fully explain. For POE we think about proof that is more probably true than not true; for CAC it is highly probably true; and then suddenly for BRD we stop focusing on probability of truth and look at possibility of doubt.

"While the defendant has no burden of proof in a criminal case, where else would the jury assume the doubt would come from? Does the jury play a passive role, or are jurors advocates of doubt? When does a doubt become reasonable, as opposed to fanciful conjecture or mere possibility? Once a doubt is reasonable, how does the state produce proof beyond it? How far beyond must it be? You see the definitional dilemma fairly quickly.

"In the old days, butchers would set the target weight on one side of the scales and throw meat onto the other side until it was in balance. Over time the scales became more exact until we now have digital scales that allow the butcher to be extremely precise.

"However, our ability to define legal burdens and quantify them has not improved over time. Efforts to quantify the burdens as percentages of certainty - e.g., 50.1 percent for POE, 75 percent for CAC, and 99 percent for BRD - have not been generally accepted. Lawyers have used everything from football analogies - POE is just over the 50, CAC reaches the opponent's 25 or 30, and BRD is almost to the goal line - to Starbuck's-speak - POE is tall, CAC is grande, and BRD is venti - to persuade juries of the different standards.

"Past efforts to define BRD, for example, spoke of the fact-finder reaching a decision to a moral certainty, or reaching the level of conviction which one needs to take action on the most critical affairs of life - how sure do you need to be to marry, choose an employer, or get a tattoo? It seems that efforts to make the definitions plainer just made them more confusing.

"Perhaps this is explained by a principle used in philosophy and science called Ockham's razor, named after 14th Century Franciscan friar William of Ockham. Sometimes referred to as the 'law of succinctness,' it is often paraphrased as 'all things being equal, the simplest solution tends to be the best one.'

"When dealing with human judgment, it may be that the best definitions of the burdens of proof are the simplest ones. Additional words only increase the possibilities for error.

"While lawyers have come up with hundreds of analogies, metaphors, and anecdotes to use in closing arguments about the burdens of proof, Illinois judges are going to sustain objections to efforts to deviate from the instructions. However, just as consumers were vigilant to prevent the butcher in olden days from keeping their thumb on the scale while weighing meat, lawyers must insist that judges and jurors do not lower the quantum of evidence required. To do so would deprive us of our full portion of justice."

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Ronald D. Spears of Taylorville is a judge of the fourth judicial circuit and Third Vice President of the Illinois Judges Association.

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