“Clear and convincing evidence” is an intermediate standard of proof discussed across several episodes of The Bob Zadek Show. Guests and host alike treat it as a high but not maximal burden — lower than “beyond a reasonable doubt” but higher than “preponderance of the evidence” — and its presence or absence becomes a recurring measure of how much procedural protection a given tribunal affords.
The standard in criminal and civil forfeiture law
In the October 2011 episode on civil asset forfeiture, Bob Zadek framed the standard as a safeguard of liberty. He said that in a criminal case, in order to protect people from losing their liberty, the government is required to prove guilt by “clear and convincing evidence,” which he called a very high standard. By contrast, in civil forfeiture the government need only show a “preponderance of the evidence,” meaning more likely than not that the property was used in the commission of a crime. Zadek argued that if the standard were raised to the criminal standard, most of the abuses would go away, and he paired that proposal with eliminating what he called the profit motive — paying cops on a commission basis — which he and guest Mike Riggs both described as “policing for profit.” Cops Are No Better Than Criminals (2011)
Mike Riggs, a writer for Reason magazine, had earlier in the same episode contrasted civil and criminal forfeiture: under criminal forfeiture, he said, you have to be convicted before your property can be taken, and the property can only be taken if it was used or gained as a result of the crime. Civil asset forfeiture, in his account, is a way to punish someone without ever trying them — a circumvention of due process. Zadek added that the state is required to prove guilt by “clear and convincing evidence” in a criminal case, and that raising the civil standard would remove most abuses. Cops Are No Better Than Criminals (2011)
The episode also noted that the Hyde Amendment, enacted in 2000 by Representative Henry Hyde, offered protection to property owners whose property was taken by the federal government, but that it affects only federal law. Zadek cited an Institute for Justice 50-state survey that rated state civil forfeiture statutes A through F and found 47 of 50 states rated D or F; California received an overall D and an F for the way states evade federal and state law. Cops Are No Better Than Criminals (2011)
Campus disciplinary proceedings before 2011
The standard reappears in the campus due process episodes, where it is described as the traditional norm in college disciplinary proceedings. In the February 2014 episode, Cathy Young told Bob Zadek that the standard of proof in campus discipline had traditionally been clear and convincing evidence for evaluating all kinds of complaints against students, and that the April 2011 letter from the Department of Education Office of Civil Rights recommended shifting to the preponderance of the evidence — which she called the lowest standard of proof in a legal case, meaning the triers of fact believe there is a slightly greater probability, like 51%, that the evidence favors the complainant. She said a later joint letter from the Department of Education and the Department of Justice reiterated that this standard is the only one appropriate and that colleges not using it stand to lose federal funds. Aren’t Men Entitled to Due Process on Campus? (2014)
Zadek responded by drawing out what he called libertarian principles: that the feminist lobby is a potent political force with no equivalent countervailing male lobby; that the federal government uses the coercive power of federal grants to influence campuses; that the federal government should not be involved; and that colleges are being dragged into becoming quasi-judicial bodies. He said that in a quasi-criminal proceeding, the criminal justice system has overwhelming safeguards to protect the accused, whereas on campus there are overwhelming safeguards to ensure the accused gets convicted. Aren’t Men Entitled to Due Process on Campus? (2014)
Joe Cohn’s breakdown of the standards
In the December 2022 episode “Do you know your rights?”, guest Joe Cohn gave a detailed account of the same shift. He said the April 4, 2011 “Dear Colleague” letter ordered institutions to use the lowest standard of evidence when deciding an allegation against a student in an expulsion or suspension hearing. For many years, he said, the norm across the country in campus disciplinary proceedings had been an intermediate or mid-level standard called the “clear and convincing evidence” standard, and the Department of Education ordered schools to use instead the “preponderance of the evidence” standard. Do you know your rights? (2022)
Cohn broke the standards into a ladder: beyond a reasonable doubt in a criminal proceeding, which he described as being pretty darn certain; then clear and convincing, which he said has no numerical score but is like being 70% sure; then preponderance, used in a civil lawsuit, where the jury is asked who you believe more, 50.01%; and then the only standard below that, whether there is any substantial evidence, which he called near complete deference to the entity making the decision. He said the Department of Education reasoned that because a civil rights lawsuit would be decided using the 50.01% preponderance standard, that is the only standard appropriate for these disciplinary proceedings. Do you know your rights? (2022)
Cohn identified what he called the primary flaw in that logic: in a court case, the 50.01% question comes after a process with significant rules and protections — both sides have the right to lawyers, there is discovery, there are rights to cross-examination, and there is a legally trained judge. None of those guardrails, he said, are there on campus. Do you know your rights? (2022)
The December 9, 2022 episode with Joe Cohn repeats the same exchange nearly verbatim, with Cohn again describing the 2011 letter as ordering institutions to use the lowest standard of evidence, the traditional campus norm as clear and convincing, and the Department of Education’s reasoning as resting on the civil preponderance standard. He again listed the missing guardrails: lawyers, discovery, cross-examination, and a trained judge. Joe Cohn on Title IX and Due Process on Campus (2022)
The standard in the Hawley bill
In the June 2019 episode on censorship, the standard appears in a different context. Bob Zadek introduced Senator Josh Hawley’s legislation as a scary and counterproductive federal intervention, and guest Frank Buckley described the bill as the Ending Support for Internet Censorship Act, which he said might better be called the Social Media Shakedown Bill. Buckley explained that the bill refers to Section 230 of the ‘96 Act, which protects platforms like Facebook and Twitter from being sued for content, and would remove that protection unless the company proves beyond a reasonable doubt in the eyes of four out of five members of the Federal Trade Commission that it does not discriminate on the basis of political viewpoints. Buckley then characterized the standard as requiring the company to prove by clear and convincing evidence that it has not discriminated on the basis of viewpoints — that is, to prove a negative. Who Will Censure the Censors? (2019)
Across episodes: the standard as a recurring fault line
The topic is treated in four episodes spanning 2011 to 2022, and the treatment is consistent rather than developing: in each, clear and convincing evidence is the higher, more protective standard, and its displacement by a lower standard is the abuse. Bob Zadek advances the argument in the civil forfeiture episode and in the campus episodes; Cathy Young and Joe Cohn supply the campus procedural detail; Frank Buckley supplies the Section 230 application. The excerpts show no change in the underlying position between the earlier and later episodes.
What the sources do not cover
The excerpts do not state which amendment or constitutional provision, if any, the courts have held to require clear and convincing evidence in any particular setting, nor do they name a case holding that the standard applies. They do not give the full text or formal title of the Hyde Amendment or of Hawley’s bill beyond what the speakers say. They do not state the outcome of any campus disciplinary proceeding or of any forfeiture case discussed, and the February 2014 excerpt breaks off mid-sentence after Cathy Young says “Yeah.”