One of the unique protections in criminal law is standard of proof. Crimes must be proved beyond a reasonable doubt. Torts and other civil wrongs must be proved by a preponderance of the evidence. “Preponderance” is taken to mean a majority, 51%, or other equivalent measures that imply that the defendant more likely than not committed the act. “Beyond a reasonable doubt” is a more difficult standard to define, but it clearly requires a much higher level of certainty than does preponderance of the evidence. Sometimes these are applied to the same facts: in the O.J. Simpson case, the jury in the criminal trial found him not guilty because they were not convinced beyond a reasonable doubt that he killed Nicole Brown Simpson and Ronald Goldman. The jury in the civil case seeking compensation for the same actions found that the proof did meet the preponderance of the evidence standard and they found him liable for the killing.

The role of the defense attorney in a criminal case is to identify weaknesses in the prosecution’s case and convince the jury that these raise a reasonable doubt about the defendant’s guilt. This strategy is most successful in complex crimes that require proof of a guilty mind (the defendant intended to commit the crime). Most of the crimes discussed in this book involve fraud and do not require the same type of intent as a traditional violent crime. This makes these much more difficult to defend. The medical care practitioner does not need to intend to defraud the government, only to intend to file the improper claim. The only instances where we will deal with the traditional criminal law issue of a guilty mind involve withdrawal of life support. In these cases, the state may raise the issue of whether the physician intended to commit active euthanasia.