preponderance standard in Washington

2024Although this standard is lower than a preponderance standard, the defendant must affirmatively “show more than a ‘conceivable effect on the outcome.’” Estes, 188 Wn.2d at 458 (internal quotation marks omitted) (quoting State v. Crawford, 159 Wn.2d 86, 99 , 147 P.3d 1288 (2006)).

2024The “reasonable probability” standard is “lower than a preponderance standard,” but it requires the defendant to “affirmatively prove prejudice” by showing more than a “‘conceivable effect on the outcome.’” Estes, 188 Wn.2d at 458 (internal quotation marks omitted) (quoting Crawford, 159 Wn.2d at 99 ).

2024This “ ‘reasonable probability’ ” standard is “lower than a preponderance standard” 5 No. 85494-1-I/6 and requires a defendant to “affirmatively prove prejudice” by showing more than a “ ‘conceivable effect on the outcome.’ ” State v. Estes, 188 Wn.2d 450 , 458, 395 P.3d 1045 (2017) (internal quotation marks omitted) (quoting Strickland, 466 U.S. at 694 ; State v. Crawford, 159 Wn.2d 86, 99 , 147 P.3d 1288 (2006)).

2024Although this standard is lower than a preponderance standard, the defendant must affirmatively “show more than a ‘conceivable effect on the outcome.’” Estes, 188 Wn.2d at 458 (internal quotation marks omitted) (quoting State v. Crawford, 159 Wn.2d 86, 99 , 147 P.3d 1288 (2006)).

2025This “‘reasonable probability’ standard is ‘lower than a preponderance standard’” but requires a defendant to affirmatively show prejudice amounting to more than just a “conceivable effect on the outcome.” Id. (quoting State v. Estes, 188 Wn.2d 450 , 458, 395 P.3d 1045 (2017)).

2024“Although this standard is lower than a preponderance standard, the defendant must affirmatively ‘show more than a ‘conceivable effect on the outcome.’” Id. (quoting Estes, 188 Wn.2d at 458).

2006Additionally, requiring a higher standard of proof than the preponderance standard is inconsistent with this court’s recognition in Amunrud that under due process, government licensing regulations need pass only rational basis scrutiny. ¶35 The Nguyen court also erred in determining what governmental interest is to be weighed in the balancing test of Mathews v. Eldridge, 424 U.S. 319, 332 , 96 S. Ct. 893 , 47 L.

2006Additionally, requiring a higher standard of proof than the preponderance standard is inconsistent with this court’s recognition in Amunrud that under due process, government licensing regulations need pass only rational basis scrutiny. ¶35 The Nguyen court also erred in determining what governmental interest is to be weighed in the balancing test of Mathews v. Eldridge, 424 U.S. 319, 332 , 96 S. Ct. 893 , 47 L.

2024Id. (“The result of a proceeding can be rendered unreliable, and hence . . . unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.”); State v. Estes, 188 Wn.2d 450 , 458, 395 P.3d 1045 (2017) (“‘reasonable probability’ is lower than a preponderance standard” (emphasis added) (citing Strickland, 466 U.S. at 694 ; State v. Jones, 183 Wn.2d 327, 339 , 352 P.3d 776 (2015))). 6 State v. Bertrand (Andrew Wesley), No. 100953-4 (Gordon McCloud, J., concurring in result of dissent) Bertrand showed just such prejudice from his trial lawy

2024Id. (“The result of a proceeding can be rendered unreliable, and hence . . . unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.”); State v. Estes, 188 Wn.2d 450 , 458, 395 P.3d 1045 (2017) (“‘reasonable probability’ is lower than a preponderance standard” (emphasis added) (citing Strickland, 466 U.S. at 694 ; State v. Jones, 183 Wn.2d 327, 339 , 352 P.3d 776 (2015))). 6 State v. Bertrand (Andrew Wesley), No. 100953-4 (Gordon McCloud, J., concurring in result of dissent) Bertrand showed just such prejudice from his trial lawy

2012Accordingly, we held that the State failed to meet the preponderance standard and that the lack of evidence fell “below even the minimum requirements of due process.” Id. at 481 . ¶20 The State argued on appeal that no additional evidence was required because the defendant acknowledged the prior conviction by failing to object.

2012Further, the failure to prove prior convictions with evidence satisfying the preponderance standard “falls below even the minimum requirements of due process.” Id. at 481 .

2006These decisions make it clear that, contrary to our holding in Nguyen , the Constitution does not require courts to apply a heightened standard of proof in all cases involving more than a "mere money judgment." [6] ¶ 36 Ignoring this precedent, the Nguyen majority primarily relied on Painter, 998 P.2d 931 , a Wyoming Supreme Court decision, to support its bright-line rule.

2006These decisions make it clear that, contrary to our holding in Nguyen, the constitution does not require courts to apply a heightened standard of proof in all cases involving more than a “mere money judgment.” 15 ¶49 Ignoring this precedent, the Nguyen majority primarily relied on Painter, 998 P.2d 931 , a Wyoming Supreme Court decision, to support its bright-line rule.

2001App. 80 , 971 P.2d 553 (1999), we distinguished the use of a sufficiency test, as under ER 602, from the use of a preponderance test as stated in this sentence.

2001Bourjaily v. United States, 483 U.S. 171, 175 , 107 S.Ct. 2775 , 97 L.Ed.2d 144 (1987). [30] In State v. Karpenski, 94 Wash.App. 80 , 971 P.2d 553 (1999), we distinguished the use of a sufficiency test, as under ER 602, from the use of a preponderance test as stated in this sentence.

2026A reasonable probability, though lower than a preponderance standard, is “a probability sufficient to undermine confidence in the outcome.” Id.

2025While the “‘reasonable probability’” standard is “‘lower than a preponderance standard,’” the defendant must still “‘affirmatively prove prejudice’ by showing more than a ‘conceivable effect on the outcome.’” Id. (internal quotation marks omitted) (quoting State v. Estes, 188 Wn.2d 450 , 458, 395 P.3d 1045 (2017)).

2022We considered and rejected this approach in Lively, reasoning that Washington has long required defendants to prove affirmative defenses by the preponderance standard because these defenses are “‘uniquely within the defendant’s knowledge and ability to establish.’” Id. (quoting State v. Riker, 123 Wn.2d 351, 367 , 869 P.2d 43 (1994)).

2011When reviewing a jury's rejection of a defendant's insanity defense, we look to see whether, after "considering the evidence in the light most favorable to the State, a rational trier of fact could have found that the defendant failed to prove *161 the defense by a preponderance of the evidence." [15] Matthews, 132 Wash.App. at 941 , 135 P.3d 495 (quoting State v. Lively, 130 Wash.2d 1, 17 , 921 P.2d 1035 (1996)); accord Crenshaw, 98 Wash.2d at 802-04 , 659 P.2d 488 (affirming jury's rejection of insanity defense by reviewing trial evidence and concluding that appellant failed to meet the prep

2016Id. at 163 (citing Olympia Brewing Co. v. Dep 't of Labor & Indus., 34 Wn.2d 498, 504 , 208 P.2d 1181 (1949), overruled in part on other grounds by Windust v. Dep 't of Labor & Indus., 52 Wn.2d 33, 40 , 323 P.2d 241 (1958)).

2016Id. at 163 (citing Olympia Brewing Co. v. Dep 't of Labor & Indus., 34 Wn.2d 498, 504 , 208 P.2d 1181 (1949), overruled in part on other grounds by Windust v. Dep 't of Labor & Indus., 52 Wn.2d 33, 40 , 323 P.2d 241 (1958)).

2016Id. at 163 (citing Olympia Brewing Co. v. Dep 't of Labor & Indus., 34 Wn.2d 498, 504 , 208 P.2d 1181 (1949), overruled in part on other grounds by Windust v. Dep 't of Labor & Indus., 52 Wn.2d 33, 40 , 323 P.2d 241 (1958)).

2016Id. at 163 (citing Olympia Brewing Co. v. Dep 't of Labor & Indus., 34 Wn.2d 498, 504 , 208 P.2d 1181 (1949), overruled in part on other grounds by Windust v. Dep 't of Labor & Indus., 52 Wn.2d 33, 40 , 323 P.2d 241 (1958)).

2009Nguyen, 144 Wash.2d at 529 , 29 P.3d 689 (internal citations omitted). ¶ 19 The dancers also cite Ongom v. Department of Health, Office of Professional Standards, 159 Wash.2d 132, 142 , 148 P.3d 1029 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2115 , 167 L.Ed.2d 815 (2007), where our Supreme Court reversed the suspension of a nursing assistant's license where the agency relied on a preponderance standard.

2009Nguyen, 144 Wn.2d at 529 (citations omitted). ¶19 The dancers also cite Ongom v. Department of Health, Office of Professional Standards, 159 Wn.2d 132, 142 , 148 P.3d 1029 (2006), cert. denied, 550 U.S. 905 (2007), where our Supreme Court reversed the suspension of a nursing assistant’s license where the agency relied on a preponderance standard.

2009Nguyen, 144 Wash.2d at 529 , 29 P.3d 689 (internal citations omitted). ¶ 19 The dancers also cite Ongom v. Department of Health, Office of Professional Standards, 159 Wash.2d 132, 142 , 148 P.3d 1029 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2115 , 167 L.Ed.2d 815 (2007), where our Supreme Court reversed the suspension of a nursing assistant's license where the agency relied on a preponderance standard.

2009Nguyen, 144 Wn.2d at 529 (citations omitted). ¶19 The dancers also cite Ongom v. Department of Health, Office of Professional Standards, 159 Wn.2d 132, 142 , 148 P.3d 1029 (2006), cert. denied, 550 U.S. 905 (2007), where our Supreme Court reversed the suspension of a nursing assistant’s license where the agency relied on a preponderance standard.

2007State v. Ford, 137 Wash.2d 472, 479-80 , 973 P.2d 452 (1999). ¶ 61 Second, applying the preponderance standard to the evidence here, we review the evidence in the light most favorable to the State. [19] In determining identity, the trial court possessed certified copies of prior convictions containing Lewis's full name, birthday, social security number, and fingerprints.

2007State v. Ford, 137 Wn.2d 472, 479-80 , 973 P.2d 452 (1999). ¶61 Second, applying the preponderance standard to the evidence here, we review the evidence in the light most favorable to the State. 19 In determining identity, the trial court possessed certified copies of prior convictions containing Lewis’s full name, birthday, Social Security number, and fingerprints.

2019It reasoned that " '[g]uilt in a criminal case must be proved beyond a reasonable doubt' " as those rules were " 'developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.' " Id. at 362 , 90 S. Ct. 1068 (alteration in original) (quoting Brinegar v. United States, 338 U.S. 160 , 174, 69 S. Ct. 1302 , 93 L.Ed. 1879 (1949) ).

2019It reasoned that " '[g]uilt in a criminal case must be proved beyond a reasonable doubt' " as those rules were " 'developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.' " Id. at 362 , 90 S. Ct. 1068 (alteration in original) (quoting Brinegar v. United States, 338 U.S. 160 , 174, 69 S. Ct. 1302 , 93 L.Ed. 1879 (1949) ).

2016Id. at 163 (citing Olympia Brewing Co. v. Dep 't of Labor & Indus., 34 Wn.2d 498, 504 , 208 P.2d 1181 (1949), overruled in part on other grounds by Windust v. Dep 't of Labor & Indus., 52 Wn.2d 33, 40 , 323 P.2d 241 (1958)).

2016Id. at 163 (citing Olympia Brewing Co. v. Dep 't of Labor & Indus., 34 Wn.2d 498, 504 , 208 P.2d 1181 (1949), overruled in part on other grounds by Windust v. Dep 't of Labor & Indus., 52 Wn.2d 33, 40 , 323 P.2d 241 (1958)).

2015Dent requires the trial court to submit the venue issue to the jury for resolution by a preponderance standard if it agrees that the defendant has raised a genuine issue of fact about venue at the close of evidence. 123 Wn.2d at 480 .

2015Dent requires the trial court to submit the venue issue to the jury for resolution by a preponderance standard if it agrees that the defendant has raised a genuine issue of fact about venue at the close of evidence. 123 Wn.2d at 480 .

2015O’Neill v. Dep’t of Licensing, 62 Wn.

2015O'Neill v. Dep't of Licensing. 62 Wn.

2015App. 7, 16 , 972 P.2d 101 (1998). 17 ¶43 Under Mathews , we consider both the risk of erroneous deprivation resulting from the preponderance standard and the likelihood that an enhanced standard would reduce that risk.

2015App. 7, 16 , 972 P.2d 101 (1998).17 Under Mathews, we consider both the risk of erroneous deprivation resulting from the preponderance standard and the likelihood that an enhanced standard would reduce that risk.

2011App. at 941 (quoting State v. Lively, 130 Wn.2d 1, 17 , 921 P.2d 1035 (1996)); accord Crenshaw, 98 Wn.2d at 802-04 (affirming jury’s rejection of insanity defense by reviewing trial evidence and concluding that appellant failed to meet the preponderance standard).

2011When reviewing a jury's rejection of a defendant's insanity defense, we look to see whether, after "considering the evidence in the light most favorable to the State, a rational trier of fact could have found that the defendant failed to prove *161 the defense by a preponderance of the evidence." [15] Matthews, 132 Wash.App. at 941 , 135 P.3d 495 (quoting State v. Lively, 130 Wash.2d 1, 17 , 921 P.2d 1035 (1996)); accord Crenshaw, 98 Wash.2d at 802-04 , 659 P.2d 488 (affirming jury's rejection of insanity defense by reviewing trial evidence and concluding that appellant failed to meet the prep

2011Comm'n, 450 U.S. 91, 95 , 101 S.Ct. 999 , 67 L.Ed.2d 69 (1981) (requiring only preponderance to revoke a stockbroker's license). ¶ 46 Other jurisdictions agree that in the context of a license to practice medicine, the preponderance standard satisfies constitutional due process requirements.

2011Comm'n, 450 U.S. 91, 95 , 101 S.Ct. 999 , 67 L.Ed.2d 69 (1981) (requiring only preponderance to revoke a stockbroker's license). ¶ 46 Other jurisdictions agree that in the context of a license to practice medicine, the preponderance standard satisfies constitutional due process requirements.