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- What preponderance of the evidence means
- The ordinary standard in federal civil litigation
- How the factfinder applies the standard
- Evidence type and persuasive weight are different questions
- Burden of persuasion and burden of production
- When federal law requires more than preponderance
- A simplified comparison
- FAQ about preponderance of the evidence
- Does preponderance mean 51 percent?
- Is preponderance used to prove criminal guilt?
- Does the party with more witnesses automatically win?
- Can a civil case use clear and convincing evidence?
- Sources
Key Facts
- Federal level: Preponderance of the evidence means that a claim or affirmative defense is more probably true than not true.
- Federal level: Preponderance is the default standard of proof in federal civil litigation unless a statute, the Constitution, or controlling precedent requires a higher burden.
- Federal level: The factfinder bases the decision on all admitted evidence, regardless of which party presented it.
- Federal level: Direct and circumstantial evidence are both considered, and federal model instructions assign neither kind automatic greater weight.
- Federal level: Clear and convincing evidence is higher than preponderance, while beyond a reasonable doubt governs proof of criminal guilt.
- Federal level: A civil presumption ordinarily shifts the burden of producing rebuttal evidence but not the burden of persuasion under Federal Rule of Evidence 301.
What preponderance of the evidence means
Preponderance of the evidence is a standard of proof. In federal civil litigation, it ordinarily asks whether a claim or affirmative defense is more probably true than not true.
The familiar phrase “more likely than not” expresses the same basic threshold. A common numerical shorthand is a likelihood greater than 50 percent, although federal jury instructions frame the decision as persuasion by the evidence rather than a calculation.
The standard does not demand absolute certainty. It instead tells the factfinder which party bears the risk when the evidence does not persuade the judge or jury that a required proposition is more probably true.
The ordinary standard in federal civil litigation
In the 2025 Carrera decision, the Supreme Court reaffirmed that preponderance remains the default standard in American civil litigation. The Court explained that the default lets parties in ordinary civil cases share the risk of factual error in roughly equal fashion.
The Court identified three principal reasons for departing from that default. A statute may expressly require a heightened standard, the Constitution may require one, or controlling precedent may recognize an uncommon setting involving unusually coercive government action.
The governing law therefore matters more than the simple label “civil.” In Carrera, the Court held that an employer proving an exemption under the Fair Labor Standards Act uses preponderance because the statute did not specify a heightened standard and the recognized grounds for departing from the default were absent.
The Supreme Court’s Huddleston decision provides another federal example: a plaintiff seeking recovery under Section 10(b) of the Securities Exchange Act proves the claim by a preponderance, not by clear and convincing evidence.
How the factfinder applies the standard
The Ninth Circuit’s current model civil instruction states the question directly: the factfinder must be persuaded that the claim or affirmative defense is more probably true than not true. The decision rests on all evidence, regardless of which party presented it.
This means that evidence does not remain attached to the party that introduced it. Testimony or an exhibit offered by one side may help the other side when the judge or jury evaluates the complete admitted record.
When the evidence leaves the factfinder unpersuaded that the burdened claim or affirmative defense is more probably true, the party bearing that burden has not satisfied preponderance.
Evidence type and persuasive weight are different questions
Federal model instructions recognize both direct and circumstantial evidence. Direct evidence directly proves a fact, such as testimony about what a witness personally saw, heard, or did; circumstantial evidence proves facts from which another fact may be found.
The Ninth Circuit’s model instruction tells jurors to consider both kinds and makes no legal distinction between the weight assigned to either category. The factfinder decides how much weight particular evidence deserves.
That rule prevents a shortcut based only on labels. Calling evidence “direct” does not automatically make it more persuasive, and calling it “circumstantial” does not make it legally inferior.
Burden of persuasion and burden of production
Preponderance describes a burden of persuasion: the required degree of persuasion about a claim or affirmative defense. A burden of production is distinct from that ultimate persuasive standard.
Federal Rule of Evidence 301 supplies a concrete illustration. Unless a federal statute or another evidence rule provides otherwise, a presumption in a civil case shifts to the opposing party the burden of producing evidence to rebut the presumption, but it does not shift the burden of persuasion originally placed on a party.
When federal law requires more than preponderance
Clear and convincing evidence is higher than preponderance but does not require proof beyond a reasonable doubt. Federal law uses it where the applicable law calls for that greater degree of confidence.
The Supreme Court’s Addington decision shows a constitutional exception: due process requires more than a preponderance before a state may commit a person involuntarily to a mental hospital for an indefinite period, and clear and convincing evidence is the constitutionally adequate standard.
Beyond a reasonable doubt is the distinct standard for criminal guilt. Federal judiciary guidance contrasts that criminal burden with the more-likely-than-not preponderance standard used by a civil petit jury.
A simplified comparison
Imagine a disputed delivery date supported by competing records. Under preponderance, the factfinder asks which account is more probably true after considering all admitted evidence.
The illustration does not create a rule favoring documents over testimony. It shows the comparative nature of the inquiry without converting the standard into a witness count or an exact probability calculation.
FAQ about preponderance of the evidence
Does preponderance mean 51 percent?
Greater than 50 percent is a common shorthand for “more likely than not.” Federal model instructions use the verbal formulation “more probably true than not true,” not a requirement that jurors assign numerical probabilities.
Is preponderance used to prove criminal guilt?
No. The government must prove criminal guilt beyond a reasonable doubt. Preponderance is the ordinary civil standard, although a particular civil issue may require a higher burden.
Does the party with more witnesses automatically win?
No automatic rule follows from the number of witnesses. The federal model instruction directs the factfinder to decide how much weight to give the evidence and to consider the complete record.
Can a civil case use clear and convincing evidence?
Yes. A statute, constitutional requirement, or controlling precedent can require a heightened standard for a particular civil issue.
Scope note: This article addresses federal authorities and does not describe any particular state’s rules.
Sources
- Supreme Court opinion in E.M.D. Sales, Inc. v. Carrera
- Ninth Circuit Model Civil Jury Instruction 1.6
- Ninth Circuit Model Civil Jury Instruction 1.12
- Ninth Circuit Model Civil Jury Instruction 1.7
- U.S. Courts overview of civil and criminal petit juries
- Supreme Court opinion in Addington v. Texas
- Supreme Court opinion in Herman & MacLean v. Huddleston
- Federal Rule of Evidence 301 on civil presumptions
- Cornell Legal Information Institute definition of preponderance of the evidence
