distinct from a mere guess or "hunch".
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(ii) This suspicion is that a crime is
afoot. In other words, criminal activity was a logical explanation for what the
official perceived. When these requirements are satisfied the official is legally
permitted to stop and/or search the person. However the search must be brief
so that its duration and thoroughness are
proportional to, and limited by, the
low standard of proof required to initiate it.
Probable Cause
Probably cause is a higher standard than reasonable suspicion. (i) It is the
standard of proof required in the United States to authorise one or more of the
following –
(a) a more thorough stop and search than reasonable suspicion
allows and (b) an arrest of the person. “Probable cause” requires two things.
(a) The official has a belief that there is a fair probability as to the truth of
some facts. Opinions as to what constitutes a “fair probability” vary -
some
say 30%, others 40%, others 51%.
As stated above, it is a higher standard
than reasonable suspicion. (b) This fair probability attaches to a belief that the
official will find contraband or evidence of a crime will be found.
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(ii)
Probable cause as a standard of proof is used in other types of cases. (a) It is
used by grand juries
to determine whether to issue an indictment. (b) In the
civil context, this standard is often used where plaintiffs are seeking a
prejudgment remedy.
Clear and Convincing Evidence
Clear and convincing evidence is the high level of burden of persuasion. This
standard of proof falls between proof beyond reasonable doubt and proof on
the balance of probabilities. It is a lesser requirement than "proof beyond a
reasonable doubt", which requires that the trier of fact be close to certain of
the truth of the prosecution’s case. It is
a stricter requirement than proof by
“on the balance of probabilities,” which merely requires that the part’s case is
more likely true than not.
The standard required by "clear and convincing
evidence"
is an upgrade on the balance of probabilities. It must not be just
more likely that the case is true, but substantially more likely. This standard is
sometimes employed in both civil and criminal procedure in the United States.
For example, a prisoner seeking habeas corpus relief from capital punishment
must prove his the facts of his innocence by clear and convincing evidence.
660
Air of Reality
As we explained above, with criminal defences apart from insanity, the
standard common law position is as follows. It will help to conceive it as two
658
Terry v Ohio 392 US 1 (1968),
659
660
Calderon v Thompson
523 US
(1998). The petitioner, Thomas M.
Thompson, a convicted rapist and murderer, was executed on 14 July 1998.
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