preponderance standard in Virginia

2025It is well-settled that “[t]he petitioner must prove all these elements by a preponderance of the evidence,” Grimm, 81 Va. App. at 93 (quoting Parson, 74 Va. App. at 441) (emphasis added), and “the preponderance standard is satisfied when the evidence convinces a factfinder that a particular fact in dispute was ‘more probable than not,’” Tyler, 73 Va. App. at 461 (quoting Lysable Transp., Inc. v. Patton, 57 Va. App. 408, 419 (2010)).

2021Sometimes referred to as the “greater weight of the evidence,” the preponderance standard is satisfied when the evidence convinces a factfinder that a particular fact in dispute was “more probable than not[.]” Lysable Transp., Inc. v. Patton, 57 Va. App. 408, 419 (2010).13 Thus, although evidence in equipoise fails to meet either standard, connection with the evidence of guilt adduced at trial.

2023See generally Ballagh v. Fauber Enters., Inc., 290 Va. 120, 124-25 (2015) (recognizing that the preponderance standard applies to civil statutory actions unless otherwise provided); see also Jones, 463 U.S. at 368 (“The preponderance of the evidence standard comports with due process for commitment of insanity acquittees.”). - 12 - Code § 19.2-182.7 divides a circuit court’s duties into two parts.

2020This Court “presume[s] that when the General Assembly creates a new, statutory cause of action, it intends the preponderance standard to apply unless it expressly states otherwise.” Ballagh v. Fauber Enters., Inc., 290 Va. 120, 124-25 (2015).

2023This error is clearly harmless as “[c]lear and convincing proof is a higher standard of proof than that required under a preponderance standard.” Turner v. Jackson, 14 Va. App. 423, 428 (1992). -5- its finding is entitled to great weight and will not be disturbed on appeal unless plainly wrong or without evidence to support it.” Fauquier Cnty.

2003Moreover, we note that in the trial court's final order, affirming the hearing officer's decision, the court stated, "the evidence in the agency record reached a clear and convincing - 23 - level of proof." "Clear and convincing proof is a higher standard of proof than that required under a preponderance standard." Turner, 14 Va. App. at 428 , 417 S.E.2d at 885 .

2024See id.

2023See generally Ballagh v. Fauber Enters., Inc., 290 Va. 120, 124-25 (2015) (recognizing that the preponderance standard applies to civil statutory actions unless otherwise provided); see also Jones, 463 U.S. at 368 (“The preponderance of the evidence standard comports with due process for commitment of insanity acquittees.”). - 12 - Code § 19.2-182.7 divides a circuit court’s duties into two parts.

2022Equally important is the public’s interest in knowing how broadly or narrowly the courts interpret and apply the governing “probable cause” standard, id., which is a level of certitude less than proof beyond a reasonable doubt, less than clear-and-convincing evidence, and less still than the preponderance standard, which requires a “showing that such a belief be correct or more likely true than false,” Evans v. Commonwealth, 290 Va. 277, 287 (2015) (citation omitted).

2015See, e.g., Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 , 107 Cal.Rptr.2d 841 , 24 P.3d 493 , 521 (2001) ; Service Rd.

2015See, e.g., Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 , 107 Cal.Rptr.2d 841 , 24 P.3d 493 , 521 (2001) ; Service Rd.

2009The term prima facie may also “be[ ] used alongside an actual preponderance standard!,] ... requiring] the factfinder to subjectively believe the evidence preponderates in the [movant’s] favor, not merely to conclude that an objective, rational factfinder could so find.” Id. at 275-76 , 590 S.E.2d at 637 (emphasis added).

2009The term prima facie may also “be[ ] used alongside an actual preponderance standard!,] ... requiring] the factfinder to subjectively believe the evidence preponderates in the [movant’s] favor, not merely to conclude that an objective, rational factfinder could so find.” Id. at 275-76 , 590 S.E.2d at 637 (emphasis added).

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).

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.

1998The Supreme Court has equated the preponderance standard with the "greater weight of the evidence.” Bedget v. Lewin, 202 Va. 535, 540, 118 S.E.2d 650, 654-55 (1961).

1998The Supreme Court has equated the preponderance standard with the "greater weight of the evidence.” Bedget v. Lewin, 202 Va. 535, 540, 118 S.E.2d 650, 654-55 (1961).

1998In addition, the Supreme Court has held that doctrine of res ipsa loquitur does not shift the burden of persuasion because the defendant "is not required to offset it by a preponderance of the evidence." Riggsby, 143 Va. at 917 , 129 S.E. at 498 (citation omitted) (emphasis added).

1998In addition, the Supreme Court has held that doctrine of res ipsa loquitur does not shift the burden of persuasion because the defendant "is not required to offset it by a preponderance of the evidence." Riggsby, 143 Va. at 917 , 129 S.E. at 498 (citation omitted) (emphasis added).