Greater Weight Evidence

Greater Weight of Evidence

Brien Roche

In any case there is a certain standard of proof. In most civil cases, the standard of proof is probability. Probability means greater than 50%. Sometimes the term “greater weight of the evidence” is used. Other times “preponderance of the evidence” is used. They all mean much

the same. The overall evidence must weigh in favor of the plaintiff in order for the plaintiff to prevail. In a criminal case, the standard of proof is guilt beyond a reasonable doubt. That is a much higher standard.

In some civil cases, the standard of proof may be what is called “clear and convincing evidence”. That level of evidence falls somewhere in between preponderance of the evidence and guilt beyond a reasonable doubt.

The Virginia Jury Instruction on the standard of proof in a civil case is curious. It says that the preponderance of the evidence is that evidence which the jury finds more persuasive when evaluated against all of the evidence.

Under that analysis, the plaintiff’s evidence is then weighed against the defendant’s evidence and if the plaintiff’s evidence outweighs the defendant’s evidence, then the plaintiff wins. That would suggest that the defendant has to present evidence. However in a civil case, as is true in a criminal case, the defendant doesn’t have to do anything. The defendant can sit like a bump on a log.

Greater Weight Evidence-Is It Just Numbers?

Sometimes the analysis may come down to quantitative evidence as opposed to qualitative evidence. That is, does the greater weight of the evidence mean which side has more witnesses on a particular issue? It probably does not mean that. It means which party has presented more credible evidence than the other?

There are numerous cases that state that positive evidence always outweighs negative evidence. If you present evidence from a witness who knows what happened because they saw it or heard it, that’s positive evidence. Evidence from a witness who simply says that they don’t know, is negative evidence. Ten witnesses who present negative evidence are probably outweighed by one witness who presents positive evidence. For instance if one side presents a number of witnesses who say that they were present when the window was broken but they didn’t see what broke the window is outweighed by one witness who says that they were present and they saw the baseball break the window.

In an injury case, the defense frequently will have only one witness on damages. That witness frequently is a defense examining doctor. The doctor may not even be an examining doctor. It may be simply a doctor who has done a record review. The argument to the jury then is that the plaintiff has presented not only treating physicians but the plaintiff herself and several lay witnesses that describe what the injury was and what caused it. That evidence outweighs the defendant’s evidence.

Greater Weight of Evidence

Posted on November 24, 2023 by Brien Roche

Brien Roche