1.4 BURDEN OF PROOF—CLEAR AND CONVINCING EVIDENCE
When a party has the burden of proving any claim or defense by clear and convincing evidence, it means you must be persuaded by the evidence that the claim or defense is highly probable. This is a higher standard of proof than proof by a preponderance of the evidence.
You should base your decision on all of the evidence, regardless of which party presented it.
See Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (defining clear and convincing evidence). See also Murphy v. I.N.S., 54 F.3d 605, 610 (9th Cir.1995) (the burden of proving a matter by clear and convincing evidence is "a heavier burden than the preponderance of the evidence standard").
In cases in which the preponderance of the evidence standard is not defined, it may be necessary to modify this instruction.
In certain civil cases, the higher standard of proof by "clear and convincing evidence" applies. See, e.g., Chapter 15 ("Trademark") Instruction 15.20 (Defenses—Abandonment—Affirmative Defense—Defendant’s Burden of Proof), Instruction 15.22 (Defenses—"Classic" Fair Use), and Instruction 15.23 (Defenses—Nominative Fair Use).
This instruction may not apply to cases based on state law.