Certain classes of civil cases require a standard of proof higher than a preponderance of the evidence. This higher standard, called “clear and convincing evidence,” denotes the measure of proof that produces on the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is an intermediate level of proof, higher than a preponderance of the evidence but lower than the criminal standard of “beyond a reasonable doubt.”41 It has also been described as that evidence which, when weighed against the evidence in opposition, will produce in the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.41.1
A party must offer clear and convincing evidence to establish an oral trust,42 a constructive trust43 or a resulting trust.44 Clear and convincing evidence is required to establish a prescriptive easement.45 The right to specific performance must be established by clear and convincing evidence.45.1 Estoppel also must be proven by clear and convincing evidence.46
In defamation cases where the plaintiff is a public official or public figure, the burden is on the plaintiff to prove by clear and convincing evidence both the falsity of the subject statements and that the publication of those statements was made with knowledge of their falsity or with reckless disregard as to whether they were true or false.47
In actions to terminate parental rights, the plaintiff’s case must be established by clear and convincing evidence.47.1
41. In re O’Bier, 833 A.2d 950, 958 (Del. Jud. 2003); In re Bailey, 821 A.2d 851, 865 (Del. 2003); Cerberus Intern., Ltd. v. Apollo Management, L.P., 794 A.2d 1141, 1151 (Del. 2002); Harrah’s Entertainment, Inc. v. JCC Holding Co., 802 A.2d 294, 312 n.40 (Del. Ch. 2004); Shipman v. Division of Social Services, 454 A.2d 767, 769 (Del. Fam. 1982), aff’d, 460 A.2d 528 (Del. 1983).
41.1. Hudak v. Procek, , 806 A.2d 140, 147 (Del. 2002); In re Truselo, 846 A.2d 256, 272-73 (Del. Fam. Ct. 2000).
42. Levin v. Smith, 513 A.2d 1292, 1296 (Del. 1986); Bradford v. Vinton, 153 A. 678, 684 (Del. Ch. 1930).
43. Shuttleworth v. Abramo, C.A. No. 11650, slip op. at 3, Allen, C. (Del. Ch. Feb. 6, 1992).
44. Greenly v Greenly 29 Del. Ch. 297, 49 A.2d 126 (Del. Ch. 1946).
45. Lickle v. Frank W. Diver, Inc., 238 A.2d 326, 329 (Del. 1968); Dewey Lions Beach Club, Inc. v. Longanecker, 905 A.2d 128, 134 (Del. Ch. 2006).
45.1. Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1158 (Del. 2010); E.I. du Pont de Nemours & Co. v. Bayer CropScience L.P., 958 A.2d 245, 252 n.34 (Del. Ch.), app. refused mem., 956 A.2d 31 (Del. 2008).
46. Chrysler Corp. (Delaware) v. Chaplake Holdings, Ltd., 822 A.2d 1024, 1032 (Del. 2003); Lord v. Souder, 748 A.2d 393, 398 (Del. 2000); Employers’ Liability Assur. Corp. v. Madric, 183 A.2d 182, 188 (Del. 1962); Mutual Ben. Life Ins. Co. v. Bailey, 190 A.2d 757, 759 (Del. 1963); Nevins v. Bryan, 885 A.2d 233, 249 (Del Ch.), aff’d mem., 884 A.2d 512 (Del.2005).
47. Ramada Inns v. Dow Jones & Co., 543 A.2d 313, 319 (Del. Super. 1987).
47.1. Wilson v. Division of Family Services, 988 A.2d 435, 443 (Del. 2010); Short v. Department of Services for Children, Youth & Their Family, 981 A.2d 1162, 1165 (Del. 2009); Clark v. Division of Family Services, 975 A.2d 813, 818 (Del. 2009); Barr v. Division of Family Services, 974 A.2d 88, 94 (Del. 2009).
© 2010 David L. Finger