WPI 160.02 Fraud—Burden of Proof
6A WAPRAC WPI 160.02Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 160.02 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part XII. Fraud
Chapter 160. Fraud
WPI 160.02 Fraud—Burden of Proof
A party who alleges [fraud]  has the burden of proving each of the elements of [fraud] [ ] by clear, cogent, and convincing evidence.
Proof by clear, cogent, and convincing evidence means that the element must be proved by evidence that carries greater weight and is more convincing than a preponderance of evidence. Clear, cogent, and convincing evidence exists when occurrence of the element has been shown by the evidence to be highly probable. However, it does not mean that the element must be proved by evidence that is convincing beyond a reasonable doubt.
A “preponderance of the evidence” means that you must be persuaded, considering all the evidence in the case, that a proposition is more probably true than not true. “Preponderance of the evidence” is defined here solely to aid you in understanding the meaning of “clear, cogent, and convincing.”
NOTE ON USE
Use this instruction when the jury has not been given WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence). If there is an alternative claim involving preponderance of the evidence so that WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence) is also given, use WPI 160.03 (Fraud—Burden of Proof—Combined with Preponderance of Evidence) instead of this instruction.
This instruction is not limited to fraud cases. By changing the word “fraud,” it may be used in any case in which the burden of proof is “clear, cogent, and convincing evidence.”
For a discussion of the high probability standard, see the Comment.
Fraud must be proved by clear, cogent, and convincing evidence. See Stiley v. Block, 130 Wn.2d 486, 505, 925 P.2d 194 (1996); DeWolf & Allen, 16A Washington Practice, Tort Law & Practice § 19:2 (5th ed.). For a listing of “facts” other than fraud requiring proof by clear, cogent, and convincing evidence, see Tegland, 5 Washington Practice, Evidence Law and Practice § 301.3 (6th ed.).
“Clear, cogent, and convincing evidence” denotes a quantum of evidence or degree of proof greater than a mere preponderance, but something less than proof beyond a reasonable doubt. In re Deming, 108 Wn.2d 82, 109, 736 P.2d 639 (1987); Davis v. Dep't of Lab. & Indus., 94 Wn.2d 119, 126, 615 P.2d 1279 (1980); Bland v. Mentor, 63 Wn.2d 150, 154, 385 P.2d 727 (1963).
In Holmes v. Raffo, 60 Wn.2d 421, 426, 374 P.2d 536 (1962), the court held that the failure to advise the jury that “clear, cogent, and convincing” proof is a higher degree of proof than a “preponderance of evidence” constitutes reversible error.
“Clear, cogent, and convincing” proof means proof that an occurrence is “highly probable.” The high probability standard is well established as a means for defining clear, cogent, and convincing evidence. See, e.g., Dalton v. State, 130 Wn.App. 653, 666, 124 P.3d 305 (2005); State Farm Fire & Cas. Co. v. Huynh, 92 Wn.App. 454, 465–66, 962 P.2d 854 (1998); see generally DeWolf & Allen, 16A Washington Practice, Tort Law & Practice § 19.2 (5th ed.); Tegland, 5 Washington Practice, Evidence Law and Practice § 301.3 (6th ed.). Juror understanding should be improved by adding the more direct definition, supplementing the statement that the standard falls somewhere between a mere preponderance and beyond a reasonable doubt.
If an instruction defining “preponderance of evidence” has been given, use of this instruction would give the jury two conflicting tests for burden of proof. Accordingly, WPI 160.03 (Fraud—Burden of Proof—Combined with Preponderance of Evidence) must be given, instead of this instruction, to avoid error. Adjustment Dep't, Olympia Credit Bureau, Inc. v. Smedegard, 40 Wn.2d 76, 78, 241 P.2d 203 (1952).
[Current as of February 2021.]
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