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Explaining the Need to Gather Evidence to Prove Fraud   

https://zalma.com/blog

Direct evidence is proof that tends to show existence of a fact in  question without the intervention of the proof of any fact.  It includes  testimony that tends to prove or disprove a fact in issue directly,  such as eye-witness testimony or a confession.  Sometimes, direct evidence may not exist because records have been  destroyed in a fire, destroyed by water, stolen, discarded, or eaten by  vermin.  If direct evidence does not exist for any reason, circumstantial  evidence must be produced to prove the fraud.  

Circumstantial Evidence  Circumstantial evidence is all evidence of an indirect nature when the  existence of the principal fact is deduced from evidentiary facts by a  process of probability reasoning.  The investigator takes circumstantial  evidence and uses deductive reasoning to reach a conclusion.   

Circumstantial evidence and the deductions of a professional  investigator are often more reliable than direct evidence like  eye-witness testimony.  Circumstantial evidence is sufficient to  establish proof of arson and other criminal activities.  

Clear and Convincing Evidence  The \\u201cclear and convincing\\u201d standard is a very difficult and stringent  standard to establish.  In New Jersey, in the case of Italian Fisherman,  Inc. v. Commercial Union, 215 N.J. Super. 278, 521 A. 2d 912 (1987),  the court refused to accept the clear and convincing evidence standard  of proof proposed by the plaintiff in an insurance fraud defense,  pointing out that proof of fraud by a preponderance of the evidence (50  percent plus one, which is much easier to establish than the \\u201cclear and  convincing evidence\\u201d standard) renders the insurance policy void from  its inception.  Preponderance of Evidence  An insurer need only prove arson by a preponderance of the evidence. In  our view the defense of arson against a fire insurance claim is  established if it is proved by a preponderance of the evidence.  

Scienter  In fraud cases, where intent, knowledge, and scienter (evil intent or  guilty knowledge) constitute essential elements of the offense, evidence  of similar frauds and misrepresentations is admissible at trial. The  insurer need only demonstrate the facts elicited during an investigation  that support the founded belief that a fraud was attempted.  Circumstantial evidence is sufficient to prove such facts if a party\'s  conduct may be reasonably inferred based upon logical inferences to be  drawn from the evidence.  

\\xa9 2021 \\u2013 Barry Zalma