California Civil Jury Instructions (CACI)

201. More Likely True—Clear and Convincing Proof

Certain facts must be proved by clear and convincing evidence, which is a higher burden of proof. This means the party must persuade you that it is highly probable that the fact is true. I will tell you specifically which facts must be proved by clear and convincing evidence.

New September 2003; Revised October 2004

Directions for Use

Evidence Code section 502 requires the court to instruct the jury regarding which party bears the burden of proof on each issue and the requisite degree of proof.

This instruction should be read immediately after CACI No. 200, Obligation to Prove—More Likely True Than Not True, if the jury will have to decide an issue by means of the clear-and-convincing evidence standard.

Sources and Authority

  • Evidence Code section 115 provides: “ ‘Burden of proof’ means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court. The burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt. [¶] Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.”
  • Evidence Code section 500 provides: “Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.”
  • Each party is entitled to the benefit of all the evidence, including the evidence produced by an adversary. (Williams v. Barnett (1955) 135 Cal.App.2d 607, 612 [287 P.2d 789]; 7 Witkin, California Procedure (4th ed. 1997) Trial, § 305, p. 352.)
  • “Proof by clear and convincing evidence is required ‘where particularly important individual interests or rights are at stake,’ such as the termination of parental rights, involuntary commitment, and deportation. However, ‘imposition of even severe civil sanctions that do not implicate such interests has been permitted after proof by a preponderance of the evidence.’ ” (Weiner v. Fleischman (1991) 54 Cal.3d 476, 487 [286 Cal.Rptr. 40, 816 P.2d 892] (quoting Herman & MacLean v. Huddleston (1983) 459 U.S. 375, 389–390).)
  • “ ‘Clear and convincing’ evidence requires a finding of high probability.” (In re Angelia P. (1981) 28 Cal.3d 908, 919 [171 Cal.Rptr. 637, 623 P.2d 198].)

Secondary Sources

1 Witkin, California Evidence (4th ed. 2000) Burden of Proof and Presumptions, §§ 38, 39

Jefferson, California Evidence Benchbook (3d ed. 1997) §§ 45.4, 45.21

4 California Trial Guide, Unit 91, Jury Deliberations and Rendition of Verdict, § 91.20 (Matthew Bender)

48 California Forms of Pleading and Practice, Ch. 551, Trial, §§ 551.90, 551.92 (Matthew Bender)