The role of the clear and convincing standard of proof in right to die cases.

• Author: Forte, David F.

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fight of the state of Missouri to require that evidence of a person's desire to have life-sustaining medical treatment withdrawn be proven by clear and convincing evidence.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. Thus, the standard is applied in cases in which one must prove a trust, a will, or a revision of a written contract by oral evidence.(12) In other areas of the law, certain presumptions can only be rebutted by a higher level of evidence. The presumption of the integrity of a person's character is so strong that courts usually require fraud, which is a quasi-criminal action, to be established by the intermediate standard.(13) Judicial respect for the electoral process requires that a court will not set aside an election result except by clear and convincing evidence.(14) Whether authorized by statute or by common law, the clear and convincing standard is utilized by states to preserve against animadversion a state of facts that public policy finds to be of significant or overriding importance. That public policy remains subject to change by the political process, however, whether its source be statute or judge-made law.(15)

In federal jurisdiction, where, in the main, there is no common law, the use of the clear and convincing standard takes a different tack. Federal courts will, of course, utilize the intermediate standard of proof if required to do so by statute.(16) More importantly for our purposes, the courts may also require the application of the intermediate standard in civil cases in order to protect individual rights and liberties guaranteed by the due process clauses of the fifth and fourteenth amendments to the Constitution against deprivation by the government.

How to Minimize Error

The Supreme Court has been careful to point out that the very "function of the legal process is to minimize the risk of erroneous decisions."(17) An erroneous decision can truly be catastrophic where fundamental liberties are at stake. That is why the highest proof-- beyond a reasonable doubt--is required in criminal cases. Similarly, where civil action threatens one's fundamental rights, the Supreme Court has mandated that in some cases the due process clause requires that the state not deprive one of such a right without meeting the highest standard of civil proof--clear and convincing evidence. As a consequence, the Court has specified that clear and convincing evidence be shown before one is involuntarily committed to a mental institution,(18) before one is deported(19) or denaturalized,(20) or before the state can terminate parents' custody rights over their children.(21)

Nonetheless, the clear and convincing standard is not essential in cases where a fundamental right is not present, or is only incidentally implicated by the operation of statute, or in cases where a person has voluntarily compromised or waived his fight. Thus, clear and convincing evidence is not required in the commitment to a mental institution of one who proved his own insanity at a criminal trial by a clear preponderance of the evidence.(22) Such an action is, in effect, a waiver. Nor is the clear and convincing standard necessitated in suits seeking to prove paternity, where any fundamental fight, if one were implicated, is highly tangential.(23)

When faced with the question whether the due process clause requires the imposition of a higher level of proof, the Court has traditionally utilized a three-part test. The Court will evaluate the importance of "the private interests affected by the judicial proceeding, the risk of error created by the state's chosen procedure, and the countervailing governmental interest supporting the use of the procedure."(24) As the test has been subsequently applied by the Court, to receive the protection of the intermediate standard, a party must normally have demonstrated first that a deprivation of a fundamental right is at stake and, in addition, that the deprivation of this private interest can be final and irrevocable. Clear and convincing evidence may be mandated if the individual "may be 'condemned to suffer grievous loss"' by the action of the state, and if "the loss threatened by the particular type of proceeding is sufficiently grave to warrant more than average certainty on the part of the fact-finder [because of] both the nature of the private interest threatened and the permanency of the threatened loss."(25)

Furthermore, the court normally requires the intermediate standard only if it is convinced that the judicial process has a high risk of erroneous fact-finding. For example, the Supreme Court found that the state's ability to marshal evidence in an action to terminate parental custody rights over their children "dwarfs the parents' ability to mount a defense."(26) Finally, the court will evaluate the importance of the governmental interest that would be served by the lower preponderance of the evidence standard. If that interest is so strong as to be compelling, the clear and convincing standard need not be required even if there is some risk of erroneous fact-finding.(27)

In deciding whether to impose, as a matter of constitutional law, an intermediate standard of proof, the Court tends to be influenced by the practice of the states and the common law tradition. That is not surprising. The Court usually repairs to the "history and tradition" of American people when delineating a due process right not specifically provided for in the Constitution.(28) It is in this fashion that the values inherent In the common law, purportedly not within the jurisdiction of the Supreme Court, will nonetheless infiltrate and inform the constitutional standards that the Court can and will apply. The Supreme Court was apparently influenced, for example, by the extensive agreement by the states in utilizing a clear and convincing standard in termination of parental custody actions.(29) On the other hand, the Court has recognized that there was a nearly unanimous tradition among the states to permit juries to award punitive damages without the need of the intermediate standard. Accordingly, the Court decided that it would...