Standards of Proof Revisited
Kevin M. Clermont
Cornell Law School
Cornell Legal Studies Research Paper No. 1321029
Emotion in Context: Exploring the Interaction between Emotions and Legal Institutions Conference, University of Chicago Law School, May 2008
Vermont Law Review, Volume 33, 2009
This essay focuses not on how factfinders process evidence but on how they apply the specified standard of proof to their finding. The oddity that prompts speculation is that the common law asks in noncriminal cases only that the fact appear more likely than not, while the civil law seems to apply the same high standard in these cases as it does in criminal cases. As a psychological explanation of the cognitive processes involved, some theorists posit that the bulk of factfinding is an unconscious process, powerful but dangerous, which generates a level of confidence against which the factfinder could apply the standard of proof. But this foggy confidence-based theory fails because standards of proof should, and factfinders arguably do, concern themselves with probability rather than confidence. Psychology also cannot explain the divide between common and civil law because the real explanation likely lies in the different goals that the two procedural systems are pursuing through their standards of proof.
Number of Pages in PDF File: 16
Keywords: civil procedure, comparative law, evidence, standards of proof
JEL Classification: K41Accepted Paper Series
Date posted: December 29, 2008
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