fraud that public policy should

encourage to be privately

enforced and act as an effective deterrent. See, e.g., In re:

The Dow Company "Sarabond" Products Liaibility Litigation, 666 F.Supp. 1466 (D. Colo. 1987).

CONCLUSION

H.R. 4920, in its "Findings" [$2(8)(9)(10)], expressly recognizes that the need for effective private enforcement of, inter alia, white collar crimes and "other sophisticated forms of criminal conduct." Having spent twenty-five years litigating private civil complex and protracted cases, I am aware of the degree of difficulty and the high risks, as well as the high costs, a plaintiff encounters in such litigation. As you do, I believe the private enforcement of RICO is an effective enforcement tool. I hate to see it emasculated because along the way it may have, in some instances, been abused. Every new law, as it matures over time, has been tested to apply to various situations. It if this dynamic that makes our judicial system so effective. Whatever abuses may have been attempted do not merit the limitations on RICO set forth in the proposed amendments. Those amendments actually undercut the fight against white collar crimes and sophisticated fraud schemes which are all too prevalent today. I hope that this Committee, in its wisdom, decides to leave RICO as it is, allowing the courts to continue their development of its application. Alternatively, I hope that the

foregoing comments temper the extenxive amendments contemplated by H.R. 4920 and H.R. 4923 so that private enforcement of RICO remains a reality and grows as an effective deterrent to unwanted conduct.

August 8, 1988

h1m6985

Thank you.

H. Laddie Montague, Jr.

¶ 73.01 MODERN FEDERAL JURY INSTRUCTIONS

Instruction 73-2

Burden of Proof-Preponderance of the Evidence1

73-4

The party with the burden of proof on any given issue has the burden of proving every disputed element of his claim to you by a preponderance of the evidence. If you conclude that the party bearing the burden of proof has failed to establish his claim by a preponderance of the evidence, you must decide against him on the issue you are considering.

What does a "preponderance of evidence" mean? To establish a fact by a preponderance of the evidence means to prove that the fact is more likely true than not true. A preponderance of the evidence means the greater weight of the evidence. It refers to the quality and persuasiveness of the evidence, not to the number of witnesses or documents. In determining whether a claim has been proved by a preponderance of the evidence, you may consider the relevant testimony of all witnesses, regardless of who may have called them, and all the relevant exhibits received in evidence, regardless of who may have produced them.

If you find that the credible evidence on a given issue is evenly divided between the parties—that it is equally probable that one side is right as it is that the other side is right-then you must decide that issue against the party having this burden of proof. That is because the party bearing this burden must prove more than simple equality of evidence he must prove the element at issue by a preponderance of the evidence. On the other hand, the party with this burden of proof need prove no more than a preponderance. So long as you find that the scales tip, however slightly, in favor of the party with this burden of proof-that what the party claims is more likely true than not true-then that element will have been proved by a preponderance of evidence.

Some of you may have heard of proof beyond a reasonable doubt, which is the proper standard of proof in a criminal trial.

1

Adapted from the charge of the Hon. Abraham Sofaer in Sharon v. Time, Inc., 83 Civ. 4660 (S.D.N.Y. 1985).

(Pub.485)

73-5

BURDEN OF PROOF

173.01

That requirement does not apply to a civil case such as this and you should put it out of your mind.

Authority

Second Circuit: Larson v. JoAnn Cab Corp., 209 F.2d 929 (2d Cir. 1954).

Third Circuit: Porter v. American Export Lines, Inc., 387 F.2d 409 (3d Cir. 1968); Virgin Islands Labor Union v. Caribe Construction Co., 343 F.2d 364 (3d Cir. 1965); Burch v. Reading Co., 240 F.2d 574 (3d Cir.), cert. denied, 353 U.S. 965 (1957). Fifth Circuit: Gardner v. Wilkinson, 643 F.2d 1135 (5th Cir. 1981).

Sixth Circuit: Disner v. Westinghouse Electric Corp., 726 F.2d 1106 (6th Cir. 1984); Toledo, St. L. & W. R. Co., v. Kountz, 168 F. 832 (6th Cir. 1909).

Comment

The standard of proof used in federal civil actions has constitutional dimensions,' finding its roots in the fifth amendment of the Constitution of the United States, which forbids any person to "be deprived of life, liberty, or property without due process of law." The standard of proof used to guide a jury's decision is an element of the due process requirement.'

There are, roughly, three standards of proof. These can be described as ranging along a "continuum" and representing

2 See Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979); Celanese Corp. of America v. Vandalia Warehouse Corp., 424 F.2d 1176 (7th Cir. 1970).

› See Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979).

Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). See also United States v. Fatico, 458 F. Supp. 388, 403 (E.D.N.Y. 1978), aff'd, 603 F.2d 1053 (2d Cir. 1979), cert. denied, 444 U.S. 1073 (1980).

(Pob.445)

73-13

BURDEN OF PROOF

1 73.01

Instruction 73-3

Burden of Proof-Clear and Convincing Evidence!

The party with the burden of proof on (the issue of _______ has the burden of proving all of the elements of his claim on that issue to you by clear and convincing evidence. If you conclude that the party bearing the burden of proof has failed to establish his claim by clear and convincing evidence, you must decide against him on the issue you are considering.

What does "clear and convincing evidence” mean? Clear and convincing evidence is a more exacting standard than proof by a preponderance of the evidence, where you need believe only that a party's claim is more likely true than not true. On the other hand, "clear and convincing" proof is not as high a standard as the burden of proof applied in criminal cases, which is proof beyond a reasonable doubt.

Clear and convincing proof leaves no substantial doubt in your mind. It is proof that establishes in your mind, not only the proposition at issue is probable, but also that it is highly probable. It is enough if the party with the burden of proof establishes his claim beyond any “substantial doubt"; he does not have to dispel every “reasonable doubt.”

(If preponderance of evidence is not also charged, add: It refers to the quality and persuasiveness of the evidence, not to the number of witnesses or documents. In determining whether a claim has been proved by clear and convincing evidence, you may consider the relevant testimony of all witnesses, regardless of who may have called them, and all the relevant exhibits received in evidence, regardless of who may have produced them.)

Authority

United States Supreme Court: Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979).

Adapted from the charge of the Hon. Abraham Sofaer in Sharon v. Time, Inc., 83 Civ. 4660 (S.D.N.Y. 1985).

(Pub. 485)