Academic journal article Issues in Law & Medicine

The Role of the Clear and Convincing Standard of Proof in Right to Die Cases

Academic journal article Issues in Law & Medicine

The Role of the Clear and Convincing Standard of Proof in Right to Die Cases

Article excerpt

In Cruzan v. Director, Missouri Department of Health,(1) the United States Supreme Court recognized the fight of the state of Missouri to require that evidence of a person's desire to have life-sustaining medical treatment withdrawn be proven by clear and convincing evidence. The question that remains is when, if ever, should the higher evidentiary standard of clear and convincing proof not merely be an option that the state may impose, but a requirement of due process.

The Three Levels of Proof

In the American system of justice, courts have adopted three levels of proof depending upon "the degree of confidence our society thinks [the fact finder] should have in the correctness of factual conclusions for a particular type of adjudication."(2) Proof may be required by a preponderance of the evidence, by clear and convincing evidence, or by proof that is beyond a reasonable doubt. The choice depends upon how society allocates the risk of error between the parties in light of the relative importance of the interests at stake.(3)

When we turn to the relative importance of the interests at stake in cases of the withdrawal of life-sustaining treatment, we are confronted, on the one side, with the interest of the person in having unwanted medical treatment discontinued, whose desires are made known contemporaneously, or before the fact, or by means of substituted judgment, or even by a third party in the best interests of the person. On the other side, the state's interests are, as traditionally defined, the preservation of life, the prevention of suicide, the interests of third parties (usually, family members), and the integrity of the medical profession. In this article, we consider whether any of the individual's or state's interests should be protected as a matter of constitutional law by the clear and convincing standard of proof at the fact-finding stage.

Under American common law principles, issues of fact in civil cases are normally determined by whichever party marshals a preponderance of evidence on its side. "The litigants thus share the risk of error in roughly equal fashion."(4) The trier of fact merely determines which side has brought forward credible evidence that outweighs the evidence put forward by the opposing party.(5) As one court put it, "A preponderance of the evidence simply means more probably true than not true, or, as it is often stated, more likely so than not so."(6)

In contrast, the standard of proof most commonly applied in criminal cases is that of proof beyond a reasonable doubt. The burden of that evidence is placed upon the state so that the accused's fundamental right to liberty is not denied without the highest of justifications. Here, "society imposes almost the entire risk of error upon itself."(7)

An intermediate standard of proof is dubbed "clear and convincing," lying somewhere between the standards of preponderance of the evidence at one pole and beyond a reasonable doubt at the other.(8) Courts have used varying formulations in describing the standard. For one, "[p]roof beyond a reasonable doubt is proof that a fact is almost certainly true, while clear and convincing evidence means simply proof that a fact is highly probable."(9) Another judge directed that the "evidence should be 'clear' in the sense that it is certain, plain to the understanding, unambiguous, and 'convincing' in the sense that it is so reasonable and persuasive as to cause the jury to believe it."(10) For most courts, it is the highest standard of proof that can be applied in civil cases.(11)

A court will employ the clear and convincing standard when there is a stronger presumption than normal that a certain state of facts exists contrary to the position of one of the parties to a suit. That preliminary strong presumption may be found in the common law, reflecting an established public policy, or it may be mandated by statute. For example, the intermediate standard is frequently required when one party seeks to use parol evidence when public policy favors written evidence. …

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