How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Ray Your Own Question
Ray, Lawyer
Category: Legal
Satisfied Customers: 42847
Experience:  30 years in civil, probate, real estate, elder law
Type Your Legal Question Here...
Ray is online now
A new question is answered every 9 seconds

What is the NJ statute governing Burden of Proof?

Customer Question

What is the NJ statute governing Burden of Proof?
Submitted: 1 year ago.
Category: Legal
Expert:  Ray replied 1 year ago.

Hi and welcome to JA. Ray here to help you today.

Here is jury instruction for preponderance of evidence in a civil case.A criminal case has higher standards beyond a reasonable doubt.

With regard to (state here the factual issue(s) to be proved) it is the obligation of (state here the party or parties upon whom the burden of proof rests) to prove those allegations by clear and convincing evidence. Clear and convincing evidence is evidence that produces in your minds a firm belief or conviction that the allegations sought to be proved by the evidence are true. It is evidence so clear, direct, weighty in terms of quality, and convincing as to cause you to come to a clear conviction of the truth of the precise facts in issue.

The clear and convincing standard of proof requires that the result shall not be reached by a mere balancing of doubts or probabilities, but rather by clear evidence which causes you to be convinced that the allegations sought to be proved are true.


Clear and convincing establishes a standard of proof falling somewhere between the traditional standards of preponderance of the evidence and beyond a reasonable doubt. It is an exception to the rule requiring proof by a preponderance of the evidence in civil cases and proof beyond a reasonable doubt in criminal cases. Although the committee does not recommend it, it nonetheless recognizes that some judges may feel more comfortable in defining the usual civil standard, preponderance of the evidence, as well as the criminal standard, beyond a

reasonable doubt, as an aid to the jury in understanding what clear and convincing evidence means. If such an election is made, the judge should consult the standard civil charge for preponderance of the evidence and criminal charge 1.104 for proof beyond a reasonable doubt. Accordingly, depending on the specific circumstances, this standard is mandated by both case law and statute. The following is a non-exclusive list of the instances where the clear and convincing standard is the applicable burden of proof; please note that most of the following citations involve matters ruled upon by a judge without a jury. They have been listed solely for any research benefit they might provide.

-- to prove a claim under Statute of Frauds, Statute of Wills, or the parole evidence rule. Herman and MacLean v. Huddleston, 459 U.S. 375, 74 L.Ed.2d 548, 549, 103 S.Ct. 683 (1983).

-- the adverse parties are at a gross disadvantage in disputing an allegation. State v. Sugar, 100 N.J. 214 (1985).

-- when the threatened loss resulting from civil proceedings is comparable to the consequences of a criminal proceeding. In re Polk License Revocation, 90 N.J. 550, 563 (1982).

-- before a decision is made to withdraw a life sustaining treatment from an incompetent nursing home patient. Matter of Conroy, 98 N.J. 321, 382 (1985).

-- in a civil commitment proceeding. Addington v. Texas, 441 U.S. 418, 60 L.Ed.2d 323, 99 S.Ct. 1804 (1079).

-- whenever the interests of the natural parents in the care, custody and management of their child are threatened. Santosky v. Kramer, 455 U.S. 754, 71 L.Ed.2d 599, 102 S.Ct. 1388 (1982).

-- where the circumstances or issues are so unusual or difficult that proof by a lower standard will not serve to generate confidence in the ultimate factual determination. In re Polk License Revocation, supra at 568.

-- cases involving defamation or where the defendant has a qualified immunity or privilege. Burke v. Deiner, 97 N.J. 465, 481 (1984).

-- discipline or disbarment proceedings against an attorney, In re Pennica, 36 N.J. 401 (1962); In re Racmiel, 90 N.J. 646, 661 (1982).

-- proving fraud. Minter v. Bendix Aviation Corp., 26 N.J. Super. 268, 274 (App. Div. 1953). When the allegation of fraud is presented as an affirmative defense and is actually a claim of non-entitlement to alleged contractural benefits or is tantamount to a claim of breach of contract on the part of a plain-tiff, the standard of proof is the usual greater weight of the evidence standard. See Italian Fisherman v. Commercial Un. Assur., 215 N.J. Super. 278 (App. Div. 1987) (defendant insurance companys affirmative defense of arson on the part of the insured, as well as the incidental torts of fraud and false swearing involved in the presentation of the claim for fire damage, must be proved by the preponderance of the evidence and not by clear and convincing proof). However, see also Batka v. Liberty Mutual, 704 F.2d 684 (3 Cir. 1983) which held that where insurance company asserts fraud in the inducement to the contract the allegation must be proved by clear and convincing proof.

-- proving a public nuisance. Township of Cherry Hill, N.J. v. N.J. Racing Commission, 131 N.J. Super. 125 (Law Div. 1974), affd o.b., 131 N.J. Super. 482 (App. Div. 1974).

-- challenging special assessments. McNally v. Township of Teaneck, 132 N.J. Super. 441 (Law Div. 1975), mod. 75 N.J. 33 (1977).

-- amending an election petition. Lepre v. Caputo, 131 N.J. Super. 118 (App. Div. 1974).

-- showing that sterilization is in the best interests of an incompetent person and that the person to be sterilized lacks the capacity to consent or withhold consent. In re Grady, 85 N.J. 235 (1981).

-- establishing that officers of a corporation seeking a casino license or an applicant for a casino key employee license possess good character, honesty and integrity. In re Boardwalk Casino License Application, 180 N.J. Super. 324 (App. Div. 1981), mod. on oth. grds. 90 N.J. 361 (1982), app. dism. 459 U.S. 1081, 74 L.Ed.2d 927, 103 S.Ct. 562 (1982); In re Tufi Application, 182 N.J. Super. 631, 638 (App. Div. 1981), certif. den 91 N.J. 189 (1982).

-- demonstrating that persons connected with an applicant for a license for the collection, transportation, treatment, storage and disposal of solid wastes, who have been previously convicted of a serious crime, have since been rehabilitated. N.J.S.A. 13:1E-133.

-- overcoming the presumption that the facts related in a sheriffs return of service are true. Garley v. Waddington, 177 N.J. Super. 173 (App. Div. 1981).

-- demonstrating that government action constitutes a taking of property. Matter of Egg Harbor Associates (Bayshore Centre), 94 N.J. 358, 374, showing that a rent control ordinance has a widespread confiscatory effect upon efficient landlords. Helmsley v. Borough of Fort Lee, 78 N.J. 200 (1978), app. dism. 440 U.S. 978, 60 L.Ed.2d 237, 99 S.Ct. 1178 (1979); Orange Taxpayers Council, Inc. v. City of Orange, 169 N.J. Super. 288 (App. Div. 1979), affd. 83 N.J. 246 (1980).

-- showing that an attorneys extrajudicial speech truly jeopardized the fairness of an ongoing trial. In re Hinds, 90 N.J. 604, 626 (1982).

-- justifying the debarment of a contractor from doing any further business with the State. N.J.A.C. 17:12-7.3(a)5; Keys Martin & Co. v. Director, Div. of Purchase, 99 N.J. 244, 263 (1985).

-- establishing that a contract should be reformed. St. Pius X House of Retreats v. Camden, 88 N.J. 571, 580-581 (1982).

-- overcoming the presumption that the value of a partners interest in a professional partnership is accurately reflected by the value ascribed to it in a buy-sell agreement. Stern v. Stern, 66 N.J. 340, 346-347 (1975).

-- showing that there was inadequate consideration for a mortgage. Continental Bank of Pa. v. Barclay Riding Acad., 93 N.J. 153, 170 (1983), cert. den. 464 U.S. 994 (1983); Federal Beneficial Assn. v. Eastern Land Co., 96 N.J. Eq. 628, 631 (E. & A. 1924).

-- overcoming the presumption that the last of two or more marriages is valid. Newburgh v. Arrigo, 88 N.J. 529, 538 (1982).

-- showing a waiver of the newspersons privilege. N.J.S.A. 2A:84A-21.3B (Rule 27).

-- overcoming the presumption of validity attaching to a certification received by a municipality for its plan for providing for its fair share of low and moderate income housing from the State Council on Affordable Housing. N.J.S.A. 52:27D-317.

-- a trial judge should not set aside a jury verdict as against the weight of the evidence unless it clearly and convincingly appears that allowing the verdict to stand would work a manifest denial of justice under the law. R. 3:20-1; R. 4:49-1(a). The same standard applies to an appellate court which is asked to overturn a trial courts denial of a motion for a new trial on the ground that the verdict was against the weight of the evidence. State v. Carter, 91 N.J. 86, 96 (1982). See State v. Sims, 65 N.J. 359, 373-374 (1974); R. 2:10-1.

Expert:  Ray replied 1 year ago.

Summary of NJ law

In most civil cases/lawsuits as well as administrative hearings, a party must prove its claim or position by a preponderance, defined as a superiority in weight, force, importance, etc. In legal terms, a preponderance of evidence means that a party has shown that its version of facts, causes, damages, or fault is more likely than not the correct version, as in personal injury and breach of contract suits. This standard is the easiest to meet and applies to all civil cases unless otherwise provided by law.

The concept of “preponderance of the evidence” can be visualized as a scale representing the burden of proof, with the totality of evidence presented by each side resting on the respective trays on either side of the scale. If the scale tips ever so slightly to one side or the other, the weightier side will prevail. If the scale does not tip toward the side of the party bearing the burden of proof, that party cannot prevail.

Trial lawyers will often instruct juries that their clients must prevail at trial if they have proved their positions by as little as 51 percent likelihood of probability (anything from 51 to 100 percent constitutes a preponderance of evidence). In other words, if a jury believes there is a 51-49 percent likelihood that a defendant (in a civil case) was negligent or liable, the plaintiff/complainant has met its burden of a preponderance of evidence, and will prevail. This is particularly helpful when juries are torn between the testimony of two expert witnesses presenting opposite opinions or views.

Thanks again for the chance to help you today.