Also known as: substantial probabilities · substantial likelihood
Written by attorneys · grounded in primary & secondary sources — see below
A legal threshold denoting a significant chance that an event or outcome will occur. The standard requires more than a mere possibility but less than certainty.
Simon Stern, counsel for a wildfire victim, posted detailed accusations on a local online forum that an insurer had trained adjusters to destroy records. The post went viral in the county where jury selection was weeks away. Because the statements were likely to reach prospective jurors and introduce untested allegations, the lawyer's conduct met the threshold that created a substantial probability of material prejudice to the pending trial.
Two days after a server-room intrusion, police showed Gene a single company photograph of former employee Betty. Gene stated it looked like the intruder. Despite the suggestive procedure, the short interval and Gene's certainty at a later lineup established that the identification carried no substantial probability of misidentification under the totality of the circumstances.
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A state disciplinary rule barred extrajudicial statements creating a substantial probability of prejudicing a trial but permitted statements about the general nature of the defense without clear limits. An attorney disciplined for a political press release argued the rule failed to give fair notice. The vagueness of the safe harbor created a substantial probability that protected speech would be chilled, rendering the rule unenforceable as applied.
A defendant facing heavy local media coverage moved to close a preliminary hearing. The trial court had to determine whether there was a substantial probability that publicity would prejudice the right to a fair trial and whether reasonable alternatives existed. Without those on-the-record findings, closure was denied and the proceeding remained open.
McCleskey presented Baldus study data showing racial disparities in capital sentencing. The Court required proof of a substantial probability that the discriminatory procedure produced his sentence. Raw statistical disparities alone did not meet that threshold, so the equal-protection claim failed.
An officer observed Sibron talking with known narcotics users and then reached into his pocket. The brief conversation supplied no facts creating a substantial probability that Sibron was armed or engaged in criminal activity. The resulting seizure therefore violated the Fourth Amendment.
Probable cause for a no-contest clause challenge exists when a reasonable person would conclude there is a substantial probability the claim will succeed. The two standards therefore overlap. The substantial-probability inquiry supplies the objective content of probable cause.
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Due process is violated only when the procedure creates a substantial probability of misidentification under the totality of the circumstances. Reliability factors such as opportunity to view, degree of attention, and time between crime and identification can overcome suggestiveness.
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The court must make specific findings that there is a substantial probability publicity will prejudice the defendant's fair-trial right and that reasonable alternatives cannot adequately protect that right.
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No. The statement must be one the lawyer knows or reasonably should know will be disseminated and will have a substantial probability of materially prejudicing the proceeding. Preexisting public discussion and the specificity of new allegations are relevant to the assessment.
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…defendants to be sentenced to death. Supp. Exh. 47. With respect to the second prong, McCleskey must prove that there is a substantial likelihood that his death sentence is due to racial factors. See Hunter v. Underwood , 471 U. S. 222, 228 (1985). The Court of Appeals assumed the validity of the Baldus study and found that it…