Also known as:clear-and-convincing · clear and convincing evidence
Written by attorneys · grounded in primary & secondary sources — see below
A standard of proof requiring evidence that produces a firm belief or conviction in the mind of the factfinder. It lies between the preponderance standard used in most civil cases and the beyond-a-reasonable-doubt standard used in criminal prosecutions.
Sources & Authorities
How it applies
Common Examples
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Victim Exclusion Hearing
Christopher Collins was scheduled to testify as the victim in a federal robbery trial. The defense moved to exclude him from the courtroom during other witnesses' testimony. The court denied the motion after finding no clear and convincing evidence that Collins's testimony would be materially altered by hearing prior accounts.
Will Revocation Dispute
Cody Callahan destroyed his 2018 will after hearing a false rumor that his son had been disinherited by statute. The son offered clear and convincing evidence of the rumor and its falsity. The court treated the revocation as ineffective under the dependent-relative-revocation doctrine.
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Cases
Statutes
Federal Rules
Uniform Acts
Model Codes
Restatements
Casebooks
Hornbooks
Defamation Actual Malice Claim
Cade Carpenter, a city council member, sued a newspaper for reporting that he had accepted bribes. Carpenter introduced documents and witness testimony showing the reporter had deliberately ignored contradictory records. The jury found actual malice by clear and convincing evidence and awarded damages.
120-Hour Survival Determination
Connor Clark and his brother were injured in the same accident. Hospital records showed the brother had vital signs for several hours after Connor was pronounced dead. The probate court found no clear and convincing evidence of 120-hour survival and therefore treated the brother as predeceasing Connor.
Oral Trust Enforcement
Craig Caldwell orally directed his sister to hold certain bank accounts in trust for his nieces. After his death the nieces offered testimony from multiple disinterested witnesses describing the exact terms. The court enforced the trust because the creation and terms were proved by clear and convincing evidence.
Donative Document Reformation
Curtis Cannon's trust instrument omitted a parcel of land he had repeatedly told his attorney to include. The omitted parcel's deed and contemporaneous notes established by clear and convincing evidence both the scrivener's mistake and Cannon's true intention. The court reformed the trust to add the parcel.
Common questions
Frequently Asked
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How does the clear and convincing standard differ from preponderance of the evidence?+
Clear and convincing evidence requires the factfinder to reach a firm belief or conviction, whereas preponderance requires only that the proposition be more probably true than not true.
Supporting sources
In which defamation cases must a plaintiff prove actual malice by clear and convincing evidence?+
Public officials and public figures must prove actual malice by clear and convincing evidence when the allegedly defamatory statement concerns their official conduct or a matter of public concern.
Supporting sources
When may a court reform an unambiguous donative document?+
A court may reform the document if clear and convincing evidence shows both that a mistake of fact or law affected specific terms and what the donor's true intention was.
Supporting sources
What must a proponent show to establish an oral trust?+
The creation of the trust and its terms must be proved by clear and convincing evidence. A writing is not required unless another statute demands one.
Supporting sources
Under the UPC, how is survival by 120 hours proved?+
An individual born before the decedent's death is deemed to have predeceased unless clear and convincing evidence establishes survival by 120 hours.
Supporting sources
418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974)Torts
…After reviewing the record, the Court of Appeals endorsed the District Court's conclusion that petitioner had failed to show by clear and convincing evidence that respondent had acted with "actual malice" as defined by New York Times . There was no evidence that the managing editor of American Opinion knew of the falsity of the accusations made…