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Different standards of proof defined and explained

Question

I watched the House of Representatives Judiciary Committee impeachment proceedings with great interest and I have a question. From time to time, one of the Judiciary Committee members would make reference to the amount of proof required for a conviction and removal from office after a trial in the United States Senate. Just what are the different standards of proof and which one applies to impeachment proceedings?

David D.
Almaden Valley

Dear David:

Your question is a good one. As this column goes to press, the full House of Representatives is due to take up the four Articles of Impeachment.

I don’t know of any definite standard of proof in the Senate for impeachment proceedings, since my copy of the U.S. Constitution seems to be silent on that question, and I haven’t conducted a lot of research into the cases. I do know that Article I, Section 3 of the Constitution states in part that:

"The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present."

Evidently, not a word is said in the Constitution about how much proof is required. So, it may be whatever the Senate determines it should be. (Like any political question.) Looking at our "normal" cases in courtrooms for guidance, there are typically three standards of proof.

First, in most civil cases, the standard of proof is by a "preponderance of the evidence." This generally means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that one cannot say that the evidence on either side of an issue preponderates, the finding on that issue must be against the party who had the burden of proving it. A common analogy for preponderance of the evidence is our children’s teeter-totter or a scale of justice being tipped in favor of one party or the other.

Second, in some civil cases, the standard of proof is by "clear and convincing evidence." This generally means evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the facts for which it is offered as proof." Clear and convincing evidence" requires a higher standard of proof than proof by a preponderance of the evidence. This obviously is a step up from "preponderance of the evidence."

Third, the standard of proof in most criminal cases is directly related to the presumption of innocence and proof "beyond a reasonable doubt." The typical jury instruction in most criminal cases for "beyond a reasonable doubt" provides as follows:

"A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt of whether [his] [her] guilt is satisfactorily shown, [he] [she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him] [her] guilty beyond a reasonable doubt."

Reasonable doubt is defined as follows: "It is not a mere possible doubt because everything relating to human affairs is open to some possible imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jury in that condition that they cannot say they feel an abiding conviction of the truth of the charge."

Of course, impeachment proceedings are not criminal in nature and President Clinton is not a defendant as such, so "beyond a reasonable doubt" probably will not apply.

Time will tell which standard of proof will be utilized. My guess is that it may be the "clear and convincing" standard. It will be interesting to see which one, or possibly a combination of two or more, will be used.