The Court of Appeal holds in this opinion that when a party's required to prove something by "clear and convincing evidence," that means "that the party must persuade you that it is highly probable that the fact is true."
That's indeed what CACI 201 says. The Court of Appeal holds that's an accurate statement of the law. A holding that's not especially surprising given that (1) it's a CACI, and (2) the California Supreme Court has used those exact words itself.
I'm nonetheless not persuaded. (And certainly not persuaded by clear and convincing evidence, FWIW.)
I think this instruction understates the burden of proof. "Clear and convincing" evidence doesn't just prove that something's "highly probable". It establishes that it's really, really, really probable.
If I were to put a quantitative figure on what "highly probable" means, it'd be somewhere around 70 percent or so. For example, imagine that a bag has four or five balls in it, all but one of which is blue, and you select one of them at random. Is it "highly probable" that you're going to pick a blue ball? I think the overwhelming majority of people would say "Yes." That's what we understand "highly probable" to mean.
By contrast, would we say that "clear and convincing evidence" establishes that you're going to pick a blue ball? I think not.
Here's perhaps a better example. One focused on what "evidence" means in the first place. Imagine that it's disputed whether the victim of an accident was a woman. Here's the only evidence that you have on that point: The victim's legal name is "Pat Smith".
It is "highly likely" that Pat's a woman? Maybe. Most people named Pat are indeed women. Some people might say, sure, it's "highly likely". (For the actual numbers: Slightly over 60% of people with the first name "Pat" are women.)
But would we ever say that the fact that the victim's first name was "Pat" counts as "clear and convincing evidence" that she was a woman? No way. Not even close. No one would say that. Which means, as a deductive matter, that evidence that something is "highly likely" is not synonymous with evidence that is clear and convincing. Notwithstanding CACI 201.
Not persuaded? Maybe because you'd have come out the other way on the "Pat" hypothetical.
Okay. Here's another one. Close to my own heart:
His/her first name is "Shawn". Is it "highly likely" that it's a male? Absolutely. Virtually every "Shawn" that you know is a male.
But is this "clear and convincing evidence" that Shawn's a male? No way. Yes, a little over 90% of Shawn's are male. But that leaves around ten percent female. That ain't enough. It's not "clear and convincing" even though we'd all agree, I think, that it's indisputably "highly likely" that s/he's a male.
The phrases are different. They mean different things. CACI 201 is wrong when it says otherwise. As is the Court of Appeal when it holds to the contrary.
Mind you, in the present case, I don't think the defendant's proposed instruction gets it right either. The one that defendant proposed said that clear and convincing evidence "requires a finding of high probability that the evidence be so clear as to leave no substantial doubt; sufficiently strong as to command the unhesitating assent of every reasonable mind." That language -- like the language in CACI 201 -- comes directly from a California Supreme Court opinion that so stated. So it's pedigree is equally unimpeachable.
But good pedigree doesn't mean it's necessarily right either. I don't think it is. The Court of Appeal says this proposed instruction basically equates to "beyond a reasonable doubt." I'm not sure that's entirely right: the proposed language is slightly less than that, in my mind. It's much more like summary judgment. Which is in no way, in my view, equivalent to beyond a reasonable doubt. The latter requires total commitment. While the former requires a little less.
Notwithstanding this fact, however, I think that "clear and convincing" evidence is lower than the burden on summary judgment. We're not saying that "all" reasonable people will agree. Rather, we're saying -- to use the same language -- that an overwhelming majority of them will agree. Maybe some reasonable people will take a different view. Maybe they won't find the evidence as powerful as we do. But we'd say that the evidence nonetheless overwhelming.
I'll demonstrate the point, and continue the theme, with a final linguistic hypothetical or two. The victim's name -- like my own -- is now "Shaun". The facts are that 99.07% of people with that name are, like me, male. Or maybe it's "John". That's 99.6% male. Is it true that the victim is male beyond a reasonable doubt? Nope. Not to me. Could be female. By contrast, is it "clear and convincing" evidence that the victim was male? Yes. To me, it is. At the point at which we're 99% sure, I'm okay with that. That's a virtual certainty. Not beyond a reasonable doubt. But virtually certain sufficient to be clear and convincing.
So I'd rephrase CACI 201. Something like this: "Certain facts must be proved by clear and convincing evidence, which is a higher burden of proof. This means that the party must persuade you that it is very highly probable, with evidence that leaves only a little room for doubt, that the fact is true."
I think that's more accurate. Both as a descriptive matter -- what we think of when we use the relevant terms in ordinary language -- as well as a normative one.
