Legal Briefs: Burden May Be Burdensome

March 21, 2012 4:06 PM Topics: Disciplinary action

Originally published in the April 2012 NABP Newsletter
By Dale J. Atkinson, JD

When undertaking an administrative disciplinary action, the burden of proof necessary to substantiate a finding of guilt is essential to sustaining such board action. Boards of pharmacy are encouraged to understand what burden of proof is necessary to support administrative disciplinary action. In many jurisdictions, a preponderance of the evidence standard is the burden of proof necessary to sustain an administrative prosecution. A preponderance of the evidence is defined as “more likely than not” and is the same burden of proof used to assess civil cases.

Some jurisdictions require a clear and convincing evidentiary standard in administrative actions. Clear and convincing evidence calls for a “more highly probable to be true than not” standard to be met to sustain a decision. A clear and convincing standard requires a greater degree of believability than the preponderance standard.

Finally, a beyond a reasonable doubt standard is used in criminal matters. Beyond a reasonable doubt is described as that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty. Beyond a reasonable doubt is the most difficult standard to meet from the prosecution perspective, based upon the fact that a person’s liberties are at stake. That is, criminally convicted defendants can be incarcerated and lose certain civil rights.

Further complicating legal issues involving burden of proof questions is the impact of using a civil or criminal conviction as a basis for subsequent administrative action. For instance, if a licensee is convicted in a civil matter by a preponderance standard, can such civil conviction form the basis for subsequent administrative action by the regulatory board? To enhance judicial efficiencies, the legal doctrines of res judicata and/or collateral estoppel may apply. Res judicata and collateral estoppel prevent the re-litigation of matters between the same parties based upon the same material facts under circumstances where all applicable due process and other rights were afforded to the parties. In short, the previous judicial determinations are conclusive of the issues (collateral estoppel) or entire litigation (res judicata) and eliminate the need to re-litigate the facts. When differing burdens of proof apply, the application of these principles becomes complicated.

The full article (PDF) is available on the NABP Web site and reviews a relevant case involving a licensee of the California Real Estate Commission.