In my last post I talked about Michael Jackson. I suggested that we did not have enough evidence to convict him. Besides, he was charged and acquitted by a jury that heard all the evidence, all the arguments, and all the irrelevant evidence was excluded. We are not in that position and must remember that.

That does not mean we can’t have our opinions. In a court of law the prosecution has a high standard of proof that it must meet before the judge or jury as the case may be, is entitled to find Jackson guilty. Jackson is entitled to be acquitted unless the evidence proves beyond a reasonable doubt that he was guilty. That is a very high standard. That same standard is not applied in all circumstances. It is much a higher than the standard of proof in a civil case.

That is why even though O.J. Simpson was found not guilty of murder, he was nonetheless successfully sued by his widow’s family for damages for her death in a civil trial. In a civil trial the plaintiff (the one suing) only needs to prove the case against the defendant (such as O.J.) on a balance of probabilities. In other words the plaintiff only has to prove that it was probable or likely that O.J. killed his wife. If it is proved that it was likely that O.J. killed his wife he can be held liable for the damages he caused in a civil suit, even though he was found not guilty on a criminal charge.

I will give you an example. If a son acquires property from his elderly parent without paying fair market value for that property and it is established that the parent was under the influence of the son and subsequently a daughter of the parent alleges that the son used undue influence to get that property without paying for it, the son is required to prove that he did not use undue influence. The son must prove that the parent exercised his or her own free will to make the gift and unless the son can prove that, the son will be required to disgorge the gift. The daughter is not required to prove that the son (her brother) used undue influence over their parent, the son must prove that he did not use undue influence. The onus of proof is on the one who gained the advantage while he was in a position of power over the vulnerable giver. This is as it should be.

This can apply the same way to others who are in a position of power over a vulnerable person. This could include the doctor of the parent, or lawyer, or accountant, or parent, or minister, or employer, or anyone else in a position of superior power over the person who made the ‘gift.’. The law presumes that undue influence was used until the person who benefitted rebuts the presumption and proves otherwise by satisfactory evidence.

This is good law. We can all learn from it. I think it can help us to understand what we might want to think about the Jackson case. Even though we acknowledge that there was insufficient evidence to prove he was guilty beyond a reasonable doubt. That high standard only applies in a criminal trial.

In a civil case sometimes the same principle is applied and might apply to someone like Michael Jackson. If he was in a position of power over a vulnerable person by reason of his wealth, fame, and power he should be forced to prove he did not misuse that power. The onus of proof should be on the powerful person not on the vulnerable person who might have been abused. Michael Jackson might be entitled to an acquittal in a criminal court, but what about the court of public opinion?