Standards of Evidence

Fundamental Cases on the Fourth Amendment by Adam J. McKee

When the Fourth Amendment comes into play, a key consideration is the reasonableness clause.  It is important to keep in mind that not all searches by police are prohibited; only unreasonable searches are prohibited.  The balancing approach to reasonableness requires courts to weigh the degree of intrusion against the government’s need for the intrusion.

Different criminal justice functions required different levels of evidence.  The highest standard of evidence is the one used to determine guilt in a criminal trial:  Beyond a Reasonable Doubt (BRD).  If every criminal justice activity required this level of evidence, criminal prosecutions would never happen.  A related concept is the idea of burden of proof.  The basic idea of burden of proof is which party to a court case must present the evidence to the prescribed standard.  In most cases, the party bringing the case to court (the prosecution in a criminal case) has the burden of proof.  That means that the prosecution is responsible for presenting most of the evidence in the case.

In a civil case, the plaintiff must satisfy the burden of persuasion.  This means that the plaintiff must convince the finder of fact (judge or jury) of the state’s case.  In civil cases, the evidentiary standard for the burden of persuasion is the preponderance of the evidence (PE).  This is a “balancing” standard where the prevailing side shows that their side’s story is “more likely than not.”  Some texts refer to the preponderance of the evidence as a percentage:  The plaintiffs must show that 51% of the evidence is in their favor to prevail.

Beyond A Reasonable Doubt

While the law respects the gravity of criminal proceedings, no criminal justice activity requires that the jury be 100% certain.  “Absolute certainty,” then, is not an evidentiary standard recognized by law.  The highest evidentiary standard known to American criminal law is beyond a reasonable doubt (BRD).  The BRD standard is the standard used to determine guilt in a criminal trial.  The BRD standard requires the state to prove that the only logical (reasonable) conclusion that can be drawn from the evidence presented is that the defendant committed the crime alleged.  If any other conclusion can reasonably be drawn from the evidence, the jury must return a verdict of not guilty.  In Victor v. Nebraska (1994), The United States Supreme Court described this standard as “such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof . . .  What is required is not an absolute or mathematical certainty, but a moral certainty.”

Probable Cause

While the standard to convict a defendant in criminal court is beyond a reasonable doubt, the criminal justice system would grind to a halt of government officials had to meet this standard for every purpose.  To investigate crimes, a balance must be struck between the civil rights of citizens and the needs of the justice system.  Importantly, the probable cause standard is set out in the Fourth Amendment and is thus the standard that police use when conducting searches, seizing contraband, evidence, and fruits of criminal activity, as well as when making arrests.  In the United States Supreme Court case of Illinois v. Gates (1983), the Court outlined a “totality of the circumstances test” that applied to determining whether law enforcement officers had probable cause to conduct a search.  The court also considered the standards that magistrates should use in determining if probable cause exists when deciding whether to issue warrants.  The Court stated that the Constitution requires these “agents of the state” “to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband evidence of a crime will be found in a particular place.”

Reasonable Suspicion

Another important evidentiary standard that police officers must understand is reasonable suspicion (RS).  This standard is one that requires less evidence than probable cause, yet some evidence must exist, and that evidence must give rise to a suspicion that is reasonable under a given set of circumstances.  This standard was established as the necessary proof that can legally justify an investigative detention and a “stop and frisk” for weapons in Terry v. Ohio (1968).  In Terry, the court established that officers have reasonable suspicion when they “observes unusual conduct which leads” them “reasonably to conclude in light of” professional training and “experience that criminal activity may be afoot and that the persons with whom he is dealing with may be armed and dangerous.”

Mere Hunch

Many times an officer will have a “Feeling” that something is afoul of the law, but cannot state exactly what circumstances gave rise to the belief.  When your “gut” tells you something, it is usually something in the environment that signals criminal activity.  An important skill that police officers must develop is the ability to pick out just what it was that gave rise to the “gut feeling” and clearly describe it.  The idea of description is critically important; to put something into words that someone else (such as a judge) can understand is to articulate it.  When you cannot articulate what gave rise to the suspicion, then it is said to be a “hunch.”  A mere hunch may give an officer reason to investigate a situation further, but it is not a standard recognized by law and thus cannot give rise to any violation of constitutional protections.  To detain a person for investigative purposes, an officer must have “specific and articulable facts” that give rise to a reasonable suspicion.

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Modification History

File Created: 07/30/2018
Last Modified: 08/10/2018



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