By Judge Earl G. Penrod

LAW ENFORCEMENT OFFICERS regularly testify in criminal matters brought by the government against an individual. Law enforcement may also be called upon to testify in a civil action, such as a lawsuit for personal injuries filed by one driver against another. In a number of jurisdictions, some traffic violations are treated as something of a hybrid, having some characteristics of both a criminal proceeding and a civil lawsuit. Regardless of the nature of the case, the facts to which the officer will testify will not change, but the court procedures may vary somewhat and some evidentiary issues will be impacted by the constitutional rights every criminal defendant enjoys.

One of the major distinctions between criminal and civil cases is the standard of proof necessary for a party to prevail. In criminal cases, which are brought by the Prosecuting/ District/State Attorney in the name of the government, the defendant must be proven guilty beyond a reasonable doubt. However, in a civil case, the plaintiff must prove the case by a preponderance of the evidence.

“Beyond a reasonable doubt” is defined in various ways, but it is not typically described in numeric terms. However, it is the highest standard of proof in our system of justice. At the risk of a circular oversimplification, a case has been proven beyond a reasonable doubt when the jury (or judge) believes that based on all of the evidence, there is no reasonable doubt remaining as to the defendant’s guilt. Absolute certainty is not the standard and any remaining doubt must be reasonable and not based upon imagination or speculation.

The preponderance of the evidence standard utilized in civil cases and for minor traffic violations in some jurisdictions is a considerably lower standard. The preponderance of the evidence may be described as tilting the scales in that party’s direction to some measurable degree.

There are other burdens of proof—such as probable cause standard, substantial evidence and clear and convincing evidence—that may be used in some circumstances and types of cases.

As noted, the standard of proof will not impact the facts to which the officer will testify but the same evidence may result in apparently inconsistent results. Even experienced law enforcement officers may struggle to understand how a defendant can be found to have committed an act in a civil case but be found not guilty for the same act in a criminal case.

TIP TO TESTIFY: Understand that the standard of proof may lead to different outcomes in different types of cases.

The Honorable Earl G. Penrod is the Senior Judge for the Indiana Office of Court Services and the American Bar Association Judicial Fellow in cooperation with NHTSA.

Have a testimony topic you would like to see addressed? Contact Judge Penrod at penrod26d01@msn.com.
This article originally appeared in the October 2017 issue of The LEL.