“Preponderance of the evidence” is, in the accounts given across The Bob Zadek Show, the lowest standard of proof available in a legal case. Guests describe it as a rule of decision under which a fact-finder rules for whichever side it believes more — a threshold of roughly 50.01% — and the show returns to it in two distinct settings: civil asset forfeiture, where the government need only show that property was more likely than not used in the commission of a crime, and campus disciplinary proceedings, where the Department of Education directed colleges to use it for allegations against students.
The standard defined
Joe Cohn, in two 2022 episodes, breaks the standards of proof into a ladder. In a criminal proceeding, guilt requires proof “beyond a reasonable doubt,” which he glosses as being pretty certain the person did it and it being unreasonable to think otherwise. The next standard down is “clear and convincing,” which he compares to being about 70% sure something really probably happened. Then comes preponderance, which he identifies as the standard used in a civil lawsuit: the jury is asked who it believes more, and at 50.01%, no matter how close the call, the side that clears that threshold wins. Below that, he says, the only other standard is whether there is any substantial evidence at all, which he characterizes as near complete deference to the decision-maker Do you know your rights? (2022).
Cathy Young, speaking as an attorney in a 2014 episode, gives the same definition in compressed form: preponderance is the lowest standard of proof in a legal case that can be used, and it means the triers of fact believe there is a slightly greater probability — she offers 51% — that the evidence favors the complainant Aren’t Men Entitled to Due Process on Campus? (2014).
Civil asset forfeiture
Bob Zadek raises the standard in the 2011 episode on civil asset forfeiture, framing it as the concept that cannot be avoided. In a criminal case, he says, the state must prove guilt by clear and convincing evidence, a very high standard, because liberty is at stake. In civil forfeiture, by contrast, all the government must show is a preponderance of the evidence, which he defines as meaning more likely than not to have been used in the commission of a crime. His stated remedy follows directly from the comparison: if you simply raise the standard to the criminal standard, then most of the abuses would go away Cops Are No Better Than Criminals (2011).
The same episode supplies the show’s concrete illustration of what the lower standard permits. Zadek describes a client in Miami, a bank that had given a first mortgage on a residence, and the federal government confiscating the residence under civil asset forfeiture and telling the bank it would lose its mortgage. The bank’s defense would have been innocence, and the feds’ answer was that the bank knew or should have known the borrower was a drug dealer — pointing to a cash down payment and the borrower’s Colombian citizenship as red flags. Zadek’s summary of the lesson is that the bank lost the house and that it had better not make loans to people paying cash down payments or to Colombians. He ties the episode to the ’80s, when civil asset forfeiture statutes were first used as a tool to combat the law on drugs Cops Are No Better Than Criminals (2011).
Mike Riggs, the guest in that episode, supplies the structural argument that the standard sits inside. He distinguishes civil asset forfeiture from criminal forfeiture, where 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, he says, is essentially a way to punish someone without ever trying them — a circumvention of due process or a fair and speedy trial. His example of the gap: a judge would never grant permission to take someone’s home, car or belongings over a misdemeanor possession of marijuana conviction, but under civil asset forfeiture, if you can claim the property was used in the commission of a crime, you can take it Cops Are No Better Than Criminals (2011).
Zadek also links the standard to the incentive structure, arguing that taking away the practice of paying cops on a commission basis — his analogy is a meter maid paid 20% of every ticket she writes — would remove the profit motive that the Institute for Justice calls “policing for profit.” He notes that he is not suggesting cops are inherently bad, but that everybody responds to incentives Cops Are No Better Than Criminals (2011).
Campus disciplinary proceedings
The 2011 “Dear Colleague” letter from the Department of Education’s Office of Civil Rights is the pivot of the campus due process episodes. Cathy Young dates it to April 2011 and describes it as a letter to the presidents of colleges and universities about the handling of sexual assault and sexual harassment cases. Among its recommendations, she says, the most important was that the standard of proof in these cases be shifted from clear and convincing evidence — traditionally the campus discipline standard for complaints against students — to the preponderance of the evidence. She notes that this is not quite a requirement, though she says it now pretty much is, and that a joint letter from the Department of Education and the Department of Justice the following March reiterated that this standard is the only appropriate one and that colleges not using it stand to lose their federal funds Aren’t Men Entitled to Due Process on Campus? (2014).
Joe Cohn, in the 2022 episodes, gives the same account with the procedural detail filled in. The April 4th, 2011 letter, he says, ordered institutions to use the lowest standard of evidence when deciding an allegation against a student in an expulsion or suspension hearing, displacing the intermediate clear and convincing standard that had been the norm across the country. He reconstructs the Department of Education’s reasoning — that a civil rights lawsuit in court would be decided on the 50.01% preponderance standard, so that is the only standard appropriate for disciplinary proceedings — and then lists what he calls the flaws in that logic. In court, both sides have the right to lawyers, there is discovery, there are rights to cross-examination, and there is a judge who has been legally trained. On college campuses, he says, those guardrails by and large do not exist, so asking a jury at the end of a court case who it believes more is not the same question as asking a campus panel the same thing Joe Cohn on Title IX and Due Process on Campus (2022).
Zadek’s framing of the campus setting in 2014 is that colleges are being dragged into becoming quasi-judicial bodies under pressure from Washington, that they are not skilled at it, and that the proceeding is quasi-criminal in its effect on the accused — the male who is accused carries the same taint as if he had been convicted of a crime. His stated concern is process: in the criminal justice system there are overwhelming safeguards to protect the accused, while here, he says, there are overwhelming safeguards to ensure the accused gets convicted Aren’t Men Entitled to Due Process on Campus? (2014).
Across episodes: the standard in two settings
The excerpts show the same question argued in more than one episode, with the treatment shifting by setting rather than by position. In the 2011 forfeiture episode, Zadek himself introduces preponderance as the civil standard the government must meet before taking property, and the remedy he proposes is to raise it to the criminal standard; the guest, Mike Riggs, argues the surrounding structure — punishment without trial and the profit motive — rather than the standard itself Cops Are No Better Than Criminals (2011). In the 2014 campus episode, Cathy Young supplies the definition and the 2011 letter’s role in shifting campus discipline from clear and convincing to preponderance, and Zadek’s response is process-driven: colleges as quasi-judicial bodies, federal coercion through grants, and the absence of criminal safeguards Aren’t Men Entitled to Due Process on Campus? (2014). By 2022, Joe Cohn restates the same 2011 letter and the same ladder of standards, adding the comparison between courtroom guardrails and their absence on campus Joe Cohn on Title IX and Due Process on Campus (2022). The later treatment is more granular about procedure; the earlier forfeiture treatment is more granular about incentives. The excerpts do not show the guests disputing one another across episodes.
What the sources do not cover
The excerpts do not state the outcome of any case applying the preponderance standard, nor do they name a statute or regulation that codifies it. They do not say which amendment or constitutional provision, if any, governs the campus proceedings, and they do not give the text or formal legal status of the “Dear Colleague” letter beyond the speakers’ characterizations. The excerpts also do not describe how the 2022 rollbacks proposed by the Biden administration changed the standard, if at all, or what the Trump administration’s formal rulemaking provided.