Evidence - Appellate Court Standards of Proof

• Publication year: 2020
• Author: By Justice Michael J. Raphael

Evidence - Appellate Court Standards of Proof

By Justice Michael J. Raphael

A legal doctrine, like a human being, can have a lifespan. One of them was laid to rest in 2020, yet we need not mourn.

I will call this California doctrine the vanishing standard of proof. Born in 1917 and reaching maturity in 1943, the doctrine was dealt a blow by the state Supreme Court in May in In re White.¹ The Court then euthanized it in July in Conservatorship of O.B.² Consider this the doctrine’s obituary.

What the Doctrine Was

In the trial court, a civil plaintiff typically has the burden of proving its case, or of proving a fact, by a preponderance of the evidence—that something is more likely than not true. Sometimes, however, the plaintiff faces a heightened standard, typically to prove the fact or case by “clear and convincing evidence.” That is a level greater than “more likely than not.” The heightened standard typically is required by statute where particularly important interests are at stake, like the termination of life by a conservator. It has been required by common law where a claim must overcome a strong presumption, such as an argument that an oral contract supplemented the terms of a written one.

A civil defendant also occasionally faces a burden of proving an affirmative defense, and some such defenses require clear and convincing proof. In criminal cases, of course, the prosecution faces the highest burden of all: proving its case beyond a reasonable doubt.

Those are all standard-of-proof burdens faced in the trial court. Justice Brian Hoffstadt thoughtfully considers them elsewhere in this publication in his article, “Evidence – Trial Court Burdens of Proof.”

Under California’s doctrine of the vanishing standard of proof, however, the level of burden no longer mattered once a civil case was on appeal. It did not play a role in the appellate court’s determination of the case. The appellate court looked at whether there was substantial evidence in support of the trial court’s determination without considering the burden of proof. As a Witkin treatise summarized the doctrine in early 2020: “But the [clear and convincing evidence] requirement applies only in the trial court. The judge may reject a showing as not measuring up to the standard, but, if the judge decides in favor of the party with this heavy burden, the clear and convincing test disappears.”³

The justification for the vanishing standard of proof was not often fleshed out. But it appears to have been grounded in a view that if an appellate court did any more than review for substantial evidence in the abstract, it ran the danger of improperly substituting its own judgment for that of the trier of fact.

How the Doctrine Developed

California law developed in the Nineteenth Century with- out the vanishing standard of proof doctrine. In Sheehan v. Sullivan,⁴ the Court reversed a judgment because proof that a deed in fee simple was intended to be a trust “must be clear, convincing, and conclusive—something more than that modicum of evidence which appellate courts sometimes hold sufficient to warrant a finding.” Similarly, in In re Jessup,⁵ the Court agreed the appellant’s authorities “no doubt state the law correctly” in holding that “where clear and conclusive evidence of a fact is required, the appellate court may inquire whether the evidence proves such fact to such a degree of certainty.”

But the state Supreme Court applied the doctrine of the vanishing standard of proof in the early twentieth century. Steinberger v. Young⁶ involved a woman who died intestate. The plaintiff successfully proved at trial that she had made an oral contract that substituted for a will.⁷ Such a contract would be unenforceable under the statute of frauds today,⁸ yet, at the time, its existence could be established with proof that was “clear, definite, and certain.”⁹ The defendant appealed, urging that the evidence was insufficient under that stan- dard.¹⁰ Rejecting that claim, the Supreme Court held that the “sufficiency of evidence to establish a given fact, even where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court, [citations] and if there be substantial evidence to support the conclusion reached below, the finding is not open to review on appeal.¹¹ (The doctrine also could be traced to Couts v. Winston,¹² which used some similar language, but also stated that the appellate court looked for "substantial evidence warranting a clear and satisfactory conviction,"¹³ which seemed to indicate that the standard of proof had not vanished entirely on appeal.)

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Steinberger's statements that the standard of proof was "primarily"¹⁴ for the trial court and that the issue was "not open to review on appeal"¹⁵ can be fairly read together to express a view that, on appeal, it does not matter if an issue required a heightened standard of proof in trial court. The doctrine of the vanishing standard of proof was born.

It became clear about 77 years ago that the doctrine had reached maturity. Stromerson v. Averill¹⁶ involved an action to quiet title to a 562-acre tract of land in Madera County.¹⁷ Stromerson, the plaintiff, took title of the land through a contract, but Averill, the defendant, claimed that Stromerson did so as his agent, so the land belonged to Averill.¹⁸ A wealthy rancher, Averill bought land through others to evade limitations that his bank placed on total lending.¹⁹

Averill prevailed in the trial court, and the Supreme Court combed through the highly contested evidence in support of Averill's claim. Ultimately, it concluded the evidence was sufficient without reference to the proof standard: "In our opinion there was substantial evidence to sustain the finding that Stromerson was acting as Averill's agent in the purchase of the 562 acres of land."²⁰

But Stromerson also brought up the standard of proof.²¹ Because taking title through an agent was a "constructive fraud," the law required Averill to prove it by clear and convincing evidence.²² Thus, he argued, the evidence should be measured against that heightened standard.²³ In response to this argument, our Supreme Court held that the standard of proof vanishes on appeal.²⁴ Whether the evidence meets a "clear and convincing" standard, the Court stated, echoing its 1917 Steinberger opinion, "is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open on appeal."²⁵

The Supreme Court, then, once again appeared to declare that the standard of proof did not matter when a California appellate court was considering whether evidence was sufficient to support a finding in the trial court. To be sure, stating that the standard is "primarily"²⁶ for the trial court leaves open the possibility that it is still somehow "secondarily" for the appellate court. But stating that substantial evidence renders the issue "not open on appeal,"²⁷ surely indicates that the "substantial evidence" appellate finding is untethered to any standard of proof. That is, the appellate...