May 26, 2020

Supreme Court of California seems to preview its holding on clear-and-convincing evidence issue

Last week we reported on the oral argument in Conservatorship of O.B., and we noted that the Supreme Court of California seems inclined to hold that the clear-and-convincing evidence standard applies on appeal.

Further evidence of the Supreme Court's inclination can be found in the Court's May 21 opinion in In re WhiteAs At the Lectern points out, the Court's framing of the substantial evidence issue in that case might presage the outcome in O.B.: the Supreme Court said it needed to determine "whether any court could have found clear and convincing evidence that the person’s release on bail posed a substantial likelihood of great bodily harm to others."  By baking the concept of clear and convincing evidence into that question, the Supreme Court seems to be disagreeing with the idea that the clear and convincing evidence standard disappears during appellate review.  We will find out soon enough.