preponderance standard in Massachusetts

2016“Under the inevitable discovery doctrine, if the Commonwealth can demonstrate by a preponderance standard that discovery of the evidence by lawful means was certain as a practical matter, the evidence may be admissible as long as the officers did not act in bad faith to accelerate the discovery of evidence, and the particular constitutional violation is not so severe as to require suppression.” Commonwealth v. Sbordone, 424 Mass. 802, 810 (1997), citing Commonwealth v. O’Connor, 406 Mass. 112, 117-118 (1989).

2014“Under the inevitable discovery doctrine, if the Commonwealth can demonstrate by a preponderance standard that discovery of the evidence by lawful means was certain as a practical matter, the evidence may be admissible as long as the officers did not act in bad faith to accelerate the discovery of evidence, and the particular constitutional violation is not so severe as to require suppression.” Commonwealth v. Sbordone, 424 Mass. 802, 810 (1997).

2016“Under the inevitable discovery doctrine, if the Commonwealth can demonstrate by a preponderance standard that discovery of the evidence by lawful means was certain as a practical matter, the evidence may be admissible as long as the officers did not act in bad faith to accelerate the discovery of evidence, and the particular constitutional violation is not so severe as to require suppression.” Commonwealth v. Sbordone, 424 Mass. 802, 810 (1997), citing Commonwealth v. O’Connor, 406 Mass. 112, 117-118 (1989).

1997Under the inevitable discovery doctrine, if the Commonwealth can demonstrate by a preponderance standard that discovery of the evidence by lawful means was certain as a practical matter, the evidence may be admissible as long as the officers did not act in bad faith to accelerate the discovery of evidence, and the particular constitutional violation is not so severe as to require suppression. 12 Commonwealth v. O’Connor, 406 Mass. 112, 117-118 (1989).

2016This is a “demanding test.” Balicki, supra, quoting Commonwealth v. Perrot, 407 Mass. 539, 548 (1990).

2001For example, in Commonwealth v. Perrot, 407 Mass. 539, 546-47 (1990), the Supreme Judicial Court observed that, In Commonwealth v. O’Connor, 406 Mass. 112 (1989), we adopted an inevitable discovery rule which complied with art. 14 of the Massachusetts Declaration of Rights.

1982In Commonwealth v. Roy, 2 Mass. App. Ct. 14 (1974), the Appeals Court stated that the preponderance standard applied to the waiver of Miranda rights determination, but in Commonwealth v. Hooks, 375 Mass. 284 , 288 n. 1 (1978), the Supreme Judicial Court stated, "the question has remained open whether this burden [Miranda waiver] may be met if the preponderance of the evidence standard is satisfied, or whether a more exacting standard, such as beyond a reasonable doubt, is applicable to the demonstration of a valid waiver...” The question is still open.

1978The Appeals Court, in Commonwealth v. Roy, 2 Mass. App. Ct. 14, 18 (1974), has held that the preponderance standard applied to the waiver determination, citing Lego v. Twomey, 404 U.S. 477, 489 (1972), and Commonwealth v. White, 353 Mass. 409 , 423 n.3 (1967), cert. denied, 391 U.S. 968 (1968).

2025On appeal, the board does not contend that its evidence met the preponderance standard applicable to civil cases, see Callahan v. Fleischman Co., 262 Mass. 437, 437-438 (1928), or otherwise argue that the evidence of likelihood of unacceptable levels of nitrogen reaching potable wells was equivalent to the "more likely than not" standard that we held in Reynolds, 88 Mass. App. Ct. at 349 , was sufficient to outweigh the need for affordable housing.

2025See Doe No. 523391, 95 Mass. App. Ct. at 92 .

2024Commonwealth v. Fontaine, 84 Mass. App. Ct. 699, 709 (2014).

2015Although a preponderance standard is generally applied in civil cases, see, e.g., Frizado v. Frizado, 420 Mass. 592, 597 (1995), the clear and convincing standard is applied when “particularly important individual interests or rights are at stake.” Craven v. State Ethics Comm’n, 390 Mass. 191, 200 (1983), quoting Herman & MacLean v. Huddleston, 459 U.S. 375, 389 (1983).

2015Proof by clear and convincing evidence is “not without teeth.” Matter of G.P., 473 Mass. 112, 120 (2015).

2015Replacing the current preponderance standard will better help to advance the goal of ensuring that the Commonwealth’s “classification and notification system is both fair and accurate.” 27 E.B. v. Verniero, supra at 1107.

2015Although a preponderance standard is generally applied in civil cases, see, e.g., Frizado v. Frizado, 420 Mass. 592, 597 (1995), the clear and convincing standard is applied when “particularly important individual interests or rights are at stake.” Craven v. State Ethics Comm’n, 390 Mass. 191, 200 (1983), quoting Herman & MacLean v. Huddleston, 459 U.S. 375, 389 (1983).

2015Authy., supra at 362 n.15. 9 In Costa, supra, the Supreme Judicial Court held that the police report in that case was admissible because it “offered a detailed factual account based on the personal observations of the detective, and it is a crime for a police officer to file a false report.” 10 In reaching this conclusion, the judge relied on Commonwealth v. Dawson, 399 Mass. 465, 467 (1987), for the proposition that proof that a substance is a particular drug may be proved by circumstantial evidence, but not by testimony or a police report alone.

2015Although a preponderance standard is generally applied in civil cases, see, e.g., Frizado v. Frizado, 420 Mass. 592, 597 (1995), the clear and convincing standard is applied when “particularly important individual interests or rights are at stake.” Craven v. State Ethics Comm’n, 390 Mass. 191, 200 (1983), quoting Herman & MacLean v. Huddleston, 459 U.S. 375, 389 (1983).

2014The clear and convincing evidence standard is more demanding than the preponderance standard, but we do not accept the defendant’s characterization that it is either “amorphous” or “an enormously heavy burden of proof.” Clear and convincing evidence is required to hold a litigant in civil contempt, see Bir-chall, petitioner, 454 Mass. 837, 852-853 (2009); to find libel against a public official or public figure, see Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 870 (1975); and to terminate parental rights, see Adoption of Helen, 429 Mass. 856, 859 (1999).

2014The clear and convincing evidence standard is more demanding than the preponderance standard, but we do not accept the defendant’s characterization that it is either “amorphous” or “an enormously heavy burden of proof.” Clear and convincing evidence is required to hold a litigant in civil contempt, see Bir-chall, petitioner, 454 Mass. 837, 852-853 (2009); to find libel against a public official or public figure, see Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 870 (1975); and to terminate parental rights, see Adoption of Helen, 429 Mass. 856, 859 (1999).

2014The clear and convincing evidence standard is more demanding than the preponderance standard, but we do not accept the defendant’s characterization that it is either “amorphous” or “an enormously heavy burden of proof.” Clear and convincing evidence is required to hold a litigant in civil contempt, see Bir-chall, petitioner, 454 Mass. 837, 852-853 (2009); to find libel against a public official or public figure, see Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 870 (1975); and to terminate parental rights, see Adoption of Helen, 429 Mass. 856, 859 (1999).

2012As we said in Commonwealth v. Polian, 288 Mass. 494, 499 (1934), where a jury must determine whether an asserted dying declaration was made under the apprehension of “swift and certain doom,” Shepard v. United States, 290 U.S. 96, 100 (1933), “the better view is that . . . it is enough” that they find “by a preponderance of the evidence the necessary preliminary facts.” Commonwealth v. Polian, supra. See Commonwealth v. Green, 420 Mass. 771, 781-782 (1995).

2012As we said in Commonwealth v. Polian, 288 Mass. 494, 499 (1934), where a jury must determine whether an asserted dying declaration was made under the apprehension of “swift and certain doom,” Shepard v. United States, 290 U.S. 96, 100 (1933), “the better view is that . . . it is enough” that they find “by a preponderance of the evidence the necessary preliminary facts.” Commonwealth v. Polian, supra. See Commonwealth v. Green, 420 Mass. 771, 781-782 (1995).

2012In contrast, the rule proposed by the defendant would result in the judge and jury each applying a different standard in determining whether to admit the out-of-court statements of coventurers. 15 Cf. Commonwealth v. Cruz, 430 Mass. 838, 844 (2000) (judge makes preliminary determination of existence of joint venture by preponderance of evidence).

2012As we said in Commonwealth v. Polian, 288 Mass. 494, 499 (1934), where a jury must determine whether an asserted dying declaration was made under the apprehension of “swift and certain doom,” Shepard v. United States, 290 U.S. 96, 100 (1933), “the better view is that . . . it is enough” that they find “by a preponderance of the evidence the necessary preliminary facts.” Commonwealth v. Polian, supra. See Commonwealth v. Green, 420 Mass. 771, 781-782 (1995).

2012As we said in Commonwealth v. Polian, 288 Mass. 494, 499 (1934), where a jury must determine whether an asserted dying declaration was made under the apprehension of “swift and certain doom,” Shepard v. United States, 290 U.S. 96, 100 (1933), “the better view is that . . . it is enough” that they find “by a preponderance of the evidence the necessary preliminary facts.” Commonwealth v. Polian, supra. See Commonwealth v. Green, 420 Mass. 771, 781-782 (1995).

2010Evid. 804(b)(6) have “generally” applied the preponderance standard and that “State courts tend to follow the same practice.” Davis v. Washington, 547 U.S. 813, 833 (2006). 12 In trying to contact the victim, Detective Reilly visited her address.