Fraud is a deception deliberately practiced in order to secure unfair or unlawful gain (adjectival form fraudulent; to defraud is the verb).
As a legal construct, fraud is both a civil wrong (i.e., a fraud victim may sue the fraud perpetrator to avoid the fraud and/or recover monetary compensation) and a criminal wrong (i.e., a fraud
perpetrator may be prosecuted and imprisoned by governmental authorities). Defrauding people or organizations of money or valuables is the usual purpose of fraud, but it sometimes instead
involves obtaining benefits without actually depriving anyone of money or valuables, such as obtaining a drivers license by way of false statements made in an application for the same.
A hoax is a distinct concept that involves deception without the intention of gain or of materially damaging or depriving the victim.
In common law jurisdictions, as a civil wrong, fraud is referred to as a tort. While the precise definitions and requirements of proof vary among jurisdictions, the requisite elements of fraud as a tort
generally are the intentional misrepresentation or concealment of an important fact upon which the victim is meant to rely, and in fact does rely, to the harm of the victim.
Proving fraud in a court of law is often said to be difficult.
That difficulty is found, for instance, in that each and every one of the elements of fraud must be proven, that the elements include proving the states of mind of the perpetrator and the victim, and
that some jurisdictions require the victim to prove fraud with so-called clear and convincing evidence.
The remedies for fraud may include rescission (i.e., reversal) of a fraudulently obtained agreement or transaction, the recovery of a monetary award to compensate for the harm caused, punitive
damages to punish or deter the misconduct, and possibly others.
In cases of a fraudulently induced contract, fraud may serve as a defense in a civil action for breach of contract or specific performance of contract.
Fraud may serve as a basis for a court to invoke its equitable jurisdiction
The burden of proof (Latin: onus probandi) is the imperative on a party in a trial to produce the evidence that will shift the conclusion away from the default position to one's own position.
The burden of proof is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, the best translation of which seems to be: "the necessity of proof always lies with the
person who lays charges.”
He who does not carry the burden of proof carries the benefit of assumption, meaning he needs no evidence to support his claim. Fulfilling the burden of proof effectively captures the benefit of
assumption, passing the burden of proof off to another party.
The term "burden of proof" is used to mean two kinds of burdens: The burden of production and the burden of persuasion.
A "burden of persuasion" or "risk of nonpersuasion" is an obligation that remains on a single party for the duration of the claim. Once the burden has been entirely discharged to the satisfaction of
the trier of fact, the party carrying the burden will succeed in its claim.
For example, the presumption of innocence places a legal burden upon the prosecution to prove all elements of the offense (generally beyond a reasonable doubt) and to disprove all the defenses
except for affirmative defenses in which the proof of non-existence of all affirmative defense(s) is not constitutionally required of the prosecution.
The burden of persuasion should not be confused with the evidential burden, or burden of production, or duty of producing evidence
which is an obligation that shifts between parties over the course of the hearing or trial. The evidential burden is the burden to adduce sufficient evidence to properly raise an issue at court.
Burden of proof refers most generally to the obligation of a party to prove its allegations at trial. In a civil case the plaintiff sets forth its allegations in a complaint, petition or other pleading. The
defendant is then required to file a responsive pleading denying some or all of the allegations and setting forth any affirmative facts in defense. Each party has the burden of proof of their
allegations.
Reasonable suspicion is a low standard of proof to determine whether a brief investigative stop or search by a police officer or any government agent is warranted. It is important to note that this
stop and/or search must be brief; its thoroughness is proportional to, and limited by, the low standard of evidence. A more definite standard of proof (often probable cause) would be required to
justify a more thorough stop/search.
In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court ruled that reasonable suspicion requires specific, articulable, and individualized suspicion that crime is afoot. A mere guess or "hunch" is not
enough to constitute reasonable suspicion.
An investigatory stop is a seizure under the Fourth Amendment. The state must justify the seizure by showing that the officer conducting the stop had a reasonable articulable suspicion that criminal
activity was afoot. The important point is that officers cannot deprive a citizen of liberty unless the officer can point to specific facts and circumstances and inferences there from that would amount
to a reasonable suspicion.
The officer must be prepared to establish that criminal activity was a logical explanation for what he perceived. The requirement serves to prevent officers from stopping individuals based merely on
hunches or unfounded suspicions. The purpose of the stop and detention is to investigate to the extent necessary to confirm or dispel the original suspicion. If the initial confrontation with the
person stopped dispels suspicion of criminal activity the officer must end the detention and allow the person to go about his or her business.
If the investigation confirms the officer's initial suspicion or reveals evidence that would justify continued detention the officer may require the person detained to remain at the scene until further
investigation is complete. In some cases, the investigation may develop sufficient evidence to constitute probable cause.
In Arizona v. Gant (2009) the United States Supreme Court defined a new standard, that of "reasonable to believe." This standard applies only to vehicle searches after the suspect has been placed
under arrest and overruled New York v. Belton by saying it must be "reasonable to believe" there is more evidence in the vehicle of the crime the suspect was arrested for. Only then are police
officers allowed to go back and search a vehicle incident to a suspect's arrest.
There is still an ongoing debate as to the exact meaning of this phrase. Some courts have said it should be a new standard while others have equated it with the "reasonable suspicion" of the Terry
stop. Most courts have agreed it is somewhere less than probable cause.
Probable cause is a relatively low standard of proof, which is used in the United States to determine whether a search, or an arrest, is warranted. It is also used by grand juries to determine
whether to issue an indictment. In the civil context, this standard is often used where plaintiffs are seeking a prejudgement remedy.
In the criminal context, the U.S. Supreme Court in United States v. Sokolow, 490 U.S. 1 (1989), determined that probable cause requires "a fair probability that contraband or evidence of a crime
will be found" in deciding whether Drug Enforcement Administration agents had a reason to execute a search. Courts vary when determining what constitutes a "fair probability": some say 30%,
others 40%, others 51%.
A good illustration of this evidence/intrusiveness continuum might be a typical police/citizen interaction. Consider the following three interactions:
• no level of suspicion required: a consensual encounter between officer and citizen
• reasonable suspicion required: a stop initiated by the officer that would cause a reasonable person not to feel free to leave
• probable cause required: arrest.
One of the least reliable standards of proof, this assessment is often used in administrative law, and often in Child Protective Services (CPS) proceedings in some states. The "some credible
evidence" standard is used as a legal placeholder to bring some controversy before a trier of fact, and into a legal process. It is on the order of the factual standard of proof needed to achieve a
finding of "probable cause" used in ex parte threshold determinations needed before a court will issue a search warrant.
It is a lower standard of proof than the "preponderance of the evidence" standard. The standard does not require the fact-finder to weigh conflicting evidence, and merely requires the investigator
or prosecutor to present the bare minimum of material credible evidence to support the allegations against the subject, or in support of the allegation; see Valmonte v. Bane, 18 F.3d 992 (2nd Cir.
1994).
In some Federal Appellate Circuit Courts, such as the Second Circuit, the "some credible evidence" standard has been found constitutionally insufficient to protect liberty interests of the parties in controversy at CPS hearings.
In some appeals from decisions of administrative agencies, the courts apply a "substantial evidence" standard of review of the agency's factual findings. In the United States, for example, if a Social Security Disability Insurance claimant is found "not disabled" (and, therefore, ineligible for benefits)
by an Administrative Law Judge (ALJ) and the claimant appeals, both the Appeals Council (the body within the Social Security Administration that hears appeals from decisions of ALJs)
and the Federal courts (which, in this type of case, will normally hear an appeal only after the claimant has exhausted all administrative remedies)
will look to see whether the administrative law judge's decision was supported by "substantial evidence" or not. Substantial evidence is "more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Preponderance of the evidence, also known as balance of probabilities is the standard required in most civil cases, and in family court determinations solely involving money, such as child support under the Child Support Standards Act.
The standard is met if the proposition is more likely to be true than not true.
Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true. Lord Denning, in Miller v. Minister of Pensions,
described it simply as "more probable than not." Until 1970, this was also the standard used in juvenile court in the United States.
This is also the standard of proof used when determining eligibility of unemployment benefits for a former employee accused of losing their job through alleged misconduct.
In most US states, the employer must prove this case based on preponderance of the evidence.
Preponderance of the evidence is the standard of proof used for immunity from prosecution under Florida's controversial stand-your-ground law.
The defense must present their evidence in a pre-trial hearing, show that the statutory prerequisites have been met, and then request that the court grant a motion for declaration of immunity.
The judge must then decide based on the preponderance of the evidence whether to grant immunity.
This is a far lower burden than "beyond a reasonable doubt," the threshold prosecutors must meet at any proceeding criminal trial.
Clear and convincing evidence is a higher level of burden of persuasion than "preponderance of the evidence".
It is employed intra-adjudicatively in administrative court determinations, as well as in civil and certain criminal procedure in the United States. For example, a prisoner seeking habeas corpus relief from capital punishment must prove his factual innocence by clear and convincing evidence.
This standard is used in many types of equity cases, including paternity, persons in need of supervision, juvenile delinquency, child custody, the probate of both wills and living wills, petitions to remove a person from life support ("right to die" cases),and many similar cases.
Clear and convincing proof means that the evidence presented by a party during the trial must be highly and substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its factuality.
In this standard, a greater degree of believability must be met than the common standard of proof in civil actions, which only requires that the facts as a threshold be more likely than not to prove the issue for which they are asserted.
This standard is also known as "clear, convincing, and satisfactory evidence"; "clear, cognizant, and convincing evidence"; and "clear, unequivocal, satisfactory, and convincing evidence", and is applied in cases or situations involving an equitable remedy or where a presumptive civil liberty interest exists.
This is the highest standard used as the burden of proof in Anglo-American jurisprudence and typically only applies in criminal proceedings. It has been described, in negative terms, as a proof having been met if there is no plausible reason to believe otherwise.
If there is a real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence, or lack of evidence, in a case, then the level of proof has not been met.
Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that one would be willing to rely and act upon it without hesitation in the most important of one's own affairs.
However, it does not mean an absolute certainty. The standard that must be met by the prosecution's evidence in a criminal prosecution is that no other logical explanation can be derived from the
facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent unless and until proven guilty.
If the trier of fact has no doubt as to the defendant's guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proved the defendant's guilt beyond a reasonable doubt and the defendant should be pronounced guilty.
The term connotes that evidence establishes a particular point to a moral certainty which precludes the existence of any reasonable alternatives. It does not mean that no doubt exists as to the
accused's guilt, but only that no reasonable doubt is possible from the evidence presented.
Further to this notion of moral certainty, where the trier of fact relies on proof that is solely circumstantial, i.e., when conviction is based entirely on circumstantial evidence, certain jurisdictions
specifically require the prosecution's burden of proof to be such that the facts proved must exclude to a moral certainty every reasonable hypothesis or inference other than guilt.
The main reason that this high level of proof is demanded in criminal trials is that such proceedings can result in the deprivation of a defendant's liberty or even in his or her death.
These outcomes are far more severe than in civil trials, in which monetary damages are the common remedy.
Beyond the shadow of a doubt is the strictest standard of proof. It requires that there be no doubt as to the issue.
Widely considered an impossible standard, a situation stemming from the nature of knowledge itself, it is valuable to mention only as a comment on the fact that evidence in a court never need (nor can) reach this level.
This phrase, has, nonetheless, come to be associated with the law in popular culture.
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