lesser standard in Oklahoma

2022The lesser standard of "clear and convincing" evidence, the state-law mandated burden of proof, is applicable to all other state law requirements for termination, as well as the determination that the State made active efforts to prevent the breakup of an Indian family as required under ICWA, 25 U.S.C., § 1912(d). ( See In the Matter of J.S. , 2008 OK CIV APP 15 177 P.3d 590 In the Matter of the Adoption of R.L.A. , 2006 OK CIV APP 138 147 P.3d 306 Matter of the Adoption of G.D.J. , 2011 OK 77 261 P.3d 1159 In the Matter of E.P.F.L. , 2011 OK CIV APP 112 265 P.3d 764 ANALYSIS ¶17 Father does n

2022The lesser standard of "clear and convincing" evidence, the state-law mandated burden of proof, is applicable to all other state law requirements for termination, as well as the determination that the State made active efforts to prevent the breakup of an Indian family as required under ICWA, 25 U.S.C., § 1912(d). ( See In the Matter of J.S. , 2008 OK CIV APP 15 177 P.3d 590 In the Matter of the Adoption of R.L.A. , 2006 OK CIV APP 138 147 P.3d 306 Matter of the Adoption of G.D.J. , 2011 OK 77 261 P.3d 1159 In the Matter of E.P.F.L. , 2011 OK CIV APP 112 265 P.3d 764 ANALYSIS ¶17 Father does n

2022The lesser standard of "clear and convincing" evidence, the state-law mandated burden of proof, is applicable to all other state law requirements for termination, as well as the determination that the State made active efforts to prevent the breakup of an Indian family as required under ICWA, 25 U.S.C., § 1912(d). ( See In the Matter of J.S. , 2008 OK CIV APP 15 177 P.3d 590 In the Matter of the Adoption of R.L.A. , 2006 OK CIV APP 138 147 P.3d 306 Matter of the Adoption of G.D.J. , 2011 OK 77 261 P.3d 1159 In the Matter of E.P.F.L. , 2011 OK CIV APP 112 265 P.3d 764 ANALYSIS ¶17 Father does n

2022The lesser standard of "clear and convincing" evidence, the state-law mandated burden of proof, is applicable to all other state law requirements for termination, as well as the determination that the State made active efforts to prevent the breakup of an Indian family as required under ICWA, 25 U.S.C., § 1912(d). ( See In the Matter of J.S. , 2008 OK CIV APP 15 177 P.3d 590 In the Matter of the Adoption of R.L.A. , 2006 OK CIV APP 138 147 P.3d 306 Matter of the Adoption of G.D.J. , 2011 OK 77 261 P.3d 1159 In the Matter of E.P.F.L. , 2011 OK CIV APP 112 265 P.3d 764 ANALYSIS ¶17 Father does n

2022The lesser standard of "clear and convincing" evidence, the state-law mandated burden of proof, is applicable to all other state law requirements for termination, as well as the determination that the State made active efforts to prevent the breakup of an Indian family as required under ICWA, 25 U.S.C., § 1912(d). ( See In the Matter of J.S. , 2008 OK CIV APP 15 177 P.3d 590 In the Matter of the Adoption of R.L.A. , 2006 OK CIV APP 138 147 P.3d 306 Matter of the Adoption of G.D.J. , 2011 OK 77 261 P.3d 1159 In the Matter of E.P.F.L. , 2011 OK CIV APP 112 265 P.3d 764 ANALYSIS ¶17 Father does n

2022The lesser standard of "clear and convincing" evidence, the state-law mandated burden of proof, is applicable to all other state law requirements for termination, as well as the determination that the State made active efforts to prevent the breakup of an Indian family as required under ICWA, 25 U.S.C., § 1912(d). ( See In the Matter of J.S. , 2008 OK CIV APP 15 177 P.3d 590 In the Matter of the Adoption of R.L.A. , 2006 OK CIV APP 138 147 P.3d 306 Matter of the Adoption of G.D.J. , 2011 OK 77 261 P.3d 1159 In the Matter of E.P.F.L. , 2011 OK CIV APP 112 265 P.3d 764 ANALYSIS ¶17 Father does n

2009Simpson v. Schwarz, 640 N.W.2d 527 , 535 & n.5 (Wis. Ct. App. 2001) (although recognizing that "neither the Rules [of Evidence] nor the Sixth Amendment apply at revocation hearings," court found it need not determine "the contours of the good cause requirement, because we conclude that the test is always met when the evidence offered in lieu of an adverse witness's live testimony would be admissible under the Wisconsin Rules of Evidence").

2009Simpson v. 250 Wis.2d 214 , 640 N.W.2d 527 , 535 & n. 5 (Ct.App.2001) (although recognizing that "neither the Rules [of Evidence] nor the Sixth Amendment apply at revocation hearings," court found it need not determine "the contours of the good cause requirement, because we conclude that the test is always met when the evidence offered in lieu of an adverse witness's live testimony would be admissible under the Wisconsin Rules of Evidence").

2007In State v. Schuette, 423 N.W.2d 104 (Minn.App.1988), the Minnesota Court of Appeals determined that an "officer's detection of an alcoholic odor emanating from an automobile constitutes probable cause to search the automobile for open bottles or cans of alcohol" and held that an officer is therefore "justified in searching anywhere in the passenger compartment where those bottles or cans might be found." Id. citing State v. Schinzing, 342 N.W.2d 105, 109 (Minn.1983).

2007In State v. Schuette, 423 N.W.2d 104 (Minn.App.1988), the Minnesota Court of Appeals determined that an "officer's detection of an alcoholic odor emanating from an automobile constitutes probable cause to search the automobile for open bottles or cans of alcohol" and held that an officer is therefore "justified in searching anywhere in the passenger compartment where those bottles or cans might be found." Id. citing State v. Schinzing, 342 N.W.2d 105, 109 (Minn.1983).

2007Tr. 15-16, 26), the warrantless search was invalid because "reasonable suspicion" is a lesser standard than "probable cause." This argument is clearly without merit because as we held in Satterlee v. State, 1976 OK CR 88, ¶¶ 18-19 , 549 P.2d 104, 108-09 , an officer's description of his own level of suspicion does not determine whether there was probable cause. [6] While this Court has not addressed this specific fact pattern in any prior published case (i.e., whether the smell of alcohol and a missing beverage container from otherwise undisturbed six-pack, versus the smell of burning marijuan

2007Tr. 15-16, 26), the warrantless search was invalid because "reasonable suspicion" is a lesser standard than "probable cause." This argument is clearly without merit because as we held in Satterlee v. State, 1976 OK CR 88, ¶¶ 18-19 , 549 P.2d 104, 108-09 , an officer's description of his own level of suspicion does not determine whether there was probable cause. [6] While this Court has not addressed this specific fact pattern in any prior published case (i.e., whether the smell of alcohol and a missing beverage container from otherwise undisturbed six-pack, versus the smell of burning marijuan

1998McMillan, 477 U.S. at 86 .

1996In Reicks v. Farmers Commodities Corp., 474 N.W.2d 809 (Iowa 1991), the commodities broker contended that he was denied access to court and a jury trial because of a compulsory arbitration clause.

1996In Reicks v. Farmers Commodities Corp., 474 N.W.2d 809 (Iowa 1991), the commodities broker contended that he was denied access to court and a jury trial because of a compulsory arbitration clause.

1990It should be noted that the Gates court concluded the opinion with the language "It is apparent, therefore, that the judge issuing the warrant had a `substantial basis for ... conclud[ing]' that probable cause to search the Gateses' home and car existed." 462 U.S. at 246 , 103 S.Ct. at 2336 , 76 L.Ed.2d at 553 .

1990It should be noted that the Gates court concluded the opinion with the language "It is apparent, therefore, that the judge issuing the warrant had a `substantial basis for ... conclud[ing]' that probable cause to search the Gateses' home and car existed." 462 U.S. at 246 , 103 S.Ct. at 2336 , 76 L.Ed.2d at 553 .

1988In support thereof plaintiffs refer us to Phillips Petroleum Co. v. United States Fidelity & Guaranty Co., 442 P.2d 303 (Okl.1968), stating this Court essentially adopted a lesser standard of review for these instances found in Kelson v. U.S., 503 F.2d 1291 (10th Cir.1974).

1988Phillips Petroleum Co. v. United States Fidelity & Guaranty Co., supra, does not stand as authority for the referred error or the lesser standard of review requested.

1988In support thereof plaintiffs refer us to Phillips Petroleum Co. v. United States Fidelity & Guaranty Co., 442 P.2d 303 (Okl. 1968), stating this Court essentially adopted a lesser standard of review for these instances found in Kelson v. U.S., 503 F.2d 1291 (10th Cir.1974).

1988In support thereof plaintiffs refer us to Phillips Petroleum Co. v. United States Fidelity & Guaranty Co., 442 P.2d 303 (Okl.1968), stating this Court essentially adopted a lesser standard of review for these instances found in Kelson v. U.S., 503 F.2d 1291 (10th Cir.1974).

1982We observe that appellate counsel in his brief argues this proposition citing to Eide v. State, 551 P.2d 275 (Okl.Cr.1976), which applies the lesser standard of “sham or mockery,” the test this Court abandoned in the Johnson decision, just two months prior to trial of this case.

1962In view of the weight of authority requiring clear and convincing proof of such a waiver on the part of the widow (see Hahn v. Dunn, 211 Iowa 678 , 234 N.W. 247 , 82 A.L.R. 1503 , 1506, 1507, and the Annotations following it at 1541ff; 57 Am.Jur., “Wills”, section 1540) and the authorities holding that oral and/or informal expressions alone are not sufficient for that purpose, we see no reason why Mrs. Doris’s letter should be governed by a lesser test.

1962In view of the weight of authority requiring clear and convincing proof of such a waiver on the part of the widow (see Hahn v. Dunn, 211 Iowa 678 , 234 N.W. 247 , 82 A.L.R. 1503 , 1506, 1507, and the Annotations following it at 1541ff; 57 Am.Jur., “Wills”, section 1540) and the authorities holding that oral and/or informal expressions alone are not sufficient for that purpose, we see no reason why Mrs. Doris’s letter should be governed by a lesser test.