clear and convincing standard in Virginia

2014“The Court of Appeals will not consider an argument on appeal which was not presented to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308 , 494 S.E.2d 484, 488 (1998).

2014“The Court of Appeals will not consider an argument on appeal which was not presented to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299, 308 , 494 S.E.2d 484, 488 (1998).

2010Ward v. Commonwealth, 13 Va. App. 144, 148 , 408 S.E.2d 921, 923 (1991).

2010Ward v. Commonwealth, 13 Va. App. 144, 148 , 408 S.E.2d 921, 923 (1991).

2020The clear and convincing standard “cannot be met with evidence that leaves ‘competing inferences “equally probable.”’” Id. at 227 (quoting Edmonds v. Edmonds, 290 Va. 10 , 22 (2015)).

2020That is, the newly-supplemented evidentiary record “is reviewed in its totality,” and we evaluate its probative force “under the clear-and-convincing standard.” Brown, 295 Va. at 229 .

2025Unlike the initial trial in which a respondent is determined to be a sexually violent predator, the purpose of the annual assessment 5 The United States Supreme Court and our Supreme Court have discussed why the clear and convincing standard is the “minimum standard” used in a civil commitment proceeding: An “individual’s interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.” The “beyond a reasonable doubt” standard “is inappropriate i

2024The defendant’s interest in the outcome of these cases is “deemed to be more substantial than mere loss of money,” and, “to reduce the risk to the defendant of having his reputation tarnished erroneously,” the clear and convincing standard “increase[es] the plaintiff’s burden of proof . . . to protect particularly important individual interests.” Id.

2026See generally Commonwealth v. Miller, 273 Va. 540, 551 (2007) (describing the clear-and-convincing standard as “an intermediate level of proof that exceeds the ‘preponderance’ standard[] but does not reach the level of certainty required in criminal cases of ‘beyond a reasonable doubt’” (quoting Grubb v. Grubb, 272 Va. 45, 54 (2006))).

2026See generally Commonwealth v. Miller, 273 Va. 540, 551 (2007) (describing the clear-and-convincing standard as “an intermediate level of proof that exceeds the ‘preponderance’ standard[] but does not reach the level of certainty required in criminal cases of ‘beyond a reasonable doubt’” (quoting Grubb v. Grubb, 272 Va. 45, 54 (2006))).

2026Walker Agency, Inc. v. Lucas, 215 Va. 535, 540-41 (1975)).

2021“The term ‘burden of proof’ actually refers to two separate burdens: the burden of producing evidence and the burden of persuasion.” Westmoreland Coal Co. v. Campbell, 7 Va. App. 217, 222 (1988).

2020Clear and convincing evidence is “that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established.” Brown, 295 Va. at 227 (quoting Judicial Inquiry & Review Comm’n of Va. v. Pomrenke, 294 Va. 401, 409 (2017)).

2019See DurretteBradshaw, P.C. v. MRC Consulting, L.C., 277 Va. 140 , 142 n.* (2009) (declining to address non-dispositive assignment of error where a dispositive assignment of error is addressed).

2014“When reviewing a trial court’s decision on appeal, we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences.” Congdon v. Congdon, 40 Va. App. 255, 258 , 578 S.E.2d 833, 834 (2003).

2014“When reviewing a trial court’s decision on appeal, we view the evidence in the light most favorable to the prevailing party, granting it the benefit of any reasonable inferences.” Congdon v. Congdon, 40 Va. App. 255, 258 , 578 S.E.2d 833, 834 (2003).

2014It does not mean clear and unequivocal. 233 Va. at 293 n.1, 355 S.E.2d at 886 n.1; see also Dooley v. Dooley, 222 Va. 240, 246 , 278 S.E.2d 865, 868 (1981) (explaining that “the judicial mind must be convinced” that adultery occurred in order for that fault ground to apply (internal quotation marks and citations omitted)); Painter v. Painter, 215 Va. 418, 420 , 211 S.E.2d 37, 38 (1975) (explaining that the clear and convincing standard is satisfied when there is “clear, positive, and convincing” evidence of adultery).

2014It does not mean clear and unequivocal. 233 Va. at 293 n.1, 355 S.E.2d at 886 n.1; see also Dooley v. Dooley, 222 Va. 240, 246 , 278 S.E.2d 865, 868 (1981) (explaining that “the judicial mind must be convinced” that adultery occurred in order for that fault ground to apply (internal quotation marks and citations omitted)); Painter v. Painter, 215 Va. 418, 420 , 211 S.E.2d 37, 38 (1975) (explaining that the clear and convincing standard is satisfied when there is “clear, positive, and convincing” evidence of adultery).

2014It does not mean clear and unequivocal. 233 Va. at 293 n.1, 355 S.E.2d at 886 n.1; see also Dooley v. Dooley, 222 Va. 240, 246 , 278 S.E.2d 865, 868 (1981) (explaining that “the judicial mind must be convinced” that adultery occurred in order for that fault ground to apply (internal quotation marks and citations omitted)); Painter v. Painter, 215 Va. 418, 420 , 211 S.E.2d 37, 38 (1975) (explaining that the clear and convincing standard is satisfied when there is “clear, positive, and convincing” evidence of adultery).

2014It does not mean clear and unequivocal. 233 Va. at 293 n.1, 355 S.E.2d at 886 n.1; see also Dooley v. Dooley, 222 Va. 240, 246 , 278 S.E.2d 865, 868 (1981) (explaining that “the judicial mind must be convinced” that adultery occurred in order for that fault ground to apply (internal quotation marks and citations omitted)); Painter v. Painter, 215 Va. 418, 420 , 211 S.E.2d 37, 38 (1975) (explaining that the clear and convincing standard is satisfied when there is “clear, positive, and convincing” evidence of adultery).

2012See 281 Va. at 202 , 704 S.E.2d at 105-06 .

2008See Martin v. Phillips, 235 Va. 523, 529 , 369 S.E.2d 397, 401 (1988) (holding that a trial court made an error of law when it applied the incorrect standard of proof), overruled on other grounds by Friendly Ice Cream Corp. v. Beckner, 268 Va. 23, 33 , 597 S.E.2d 34, 39 (2004); Gulfstream Building Assocs., Inc. v. Britt, 239 Va. 178, 183 , 387 S.E.2d 488, 491 (1990) (noting that application of a preponderance standard of proof, rather than the clear and convincing standard of proof, was error in a case that involved fraud).

2008See Martin v. Phillips, 235 Va. 523, 529 , 369 S.E.2d 397, 401 (1988) (holding that a trial court made an error of law when it applied the incorrect standard of proof), overruled on other grounds by Friendly Ice Cream Corp. v. Beckner, 268 Va. 23, 33 , 597 S.E.2d 34, 39 (2004); Gulfstream Building Assocs., Inc. v. Britt, 239 Va. 178, 183 , 387 S.E.2d 488, 491 (1990) (noting that application of a preponderance standard of proof, rather than the clear and convincing standard of proof, was error in a case that involved fraud).

2008See Martin v. Phillips, 235 Va. 523, 529 , 369 S.E.2d 397, 401 (1988) (holding that a trial court made an error of law when it applied the incorrect standard of proof), overruled on other grounds by Friendly Ice Cream Corp. v. Beckner, 268 Va. 23, 33 , 597 S.E.2d 34, 39 (2004); Gulfstream Building Assocs., Inc. v. Britt, 239 Va. 178, 183 , 387 S.E.2d 488, 491 (1990) (noting that application of a preponderance standard of proof, rather than the clear and convincing standard of proof, was error in a case that involved fraud).

2008See Martin v. Phillips, 235 Va. 523, 529 , 369 S.E.2d 397, 401 (1988) (holding that a trial court made an error of law when it applied the incorrect standard of proof), overruled on other grounds by Friendly Ice Cream Corp. v. Beckner, 268 Va. 23, 33 , 597 S.E.2d 34, 39 (2004); Gulfstream Building Assocs., Inc. v. Britt, 239 Va. 178, 183 , 387 S.E.2d 488, 491 (1990) (noting that application of a preponderance standard of proof, rather than the clear and convincing standard of proof, was error in a case that involved fraud).

2008See Martin v. Phillips, 235 Va. 523, 529 , 369 S.E.2d 397, 401 (1988) (holding that a trial court made an error of law when it applied the incorrect standard of proof), overruled on other grounds by Friendly Ice Cream Corp. v. Beckner, 268 Va. 23, 33 , 597 S.E.2d 34, 39 (2004); Gulfstream Building Assocs., Inc. v. Britt, 239 Va. 178, 183 , 387 S.E.2d 488, 491 (1990) (noting that application of a preponderance standard of proof, rather than the clear and convincing standard of proof, was error in a case that involved fraud).

2008See Martin v. Phillips, 235 Va. 523, 529 , 369 S.E.2d 397, 401 (1988) (holding that a trial court made an error of law when it applied the incorrect standard of proof), overruled on other grounds by Friendly Ice Cream Corp. v. Beckner, 268 Va. 23, 33 , 597 S.E.2d 34, 39 (2004); Gulfstream Building Assocs., Inc. v. Britt, 239 Va. 178, 183 , 387 S.E.2d 488, 491 (1990) (noting that application of a preponderance standard of proof, rather than the clear and convincing standard of proof, was error in a case that involved fraud).

2004See United States v. Houlihan, 92 F.3d 1271, 1290 (1st Cir. 1996).

2004In a recent decision, the Fourth Circuit held that “under either a clear and convincing standard or a preponderance standard, we cannot say the district court abused its discretion in admitting the statements under the waiver-by-wrongdoing doctrine.” United States v. Celestine, 43 Fed.

2004Some circuits apply a clear and convincing standard, see United States v. Thevis, 665 F.2d 616, 630 (5th Cir. 1982), while others use a preponderance of the evidence analysis.