A Comparative View of Standards of Proof
Emily L. Sherwin
Cornell University - Law School
Kevin M. Clermont
Cornell Law School
American Journal of Comparative Law, Vol. 50, p. 243, 2002
U of San Diego Public Law Research Paper No. 32
In common-law systems, the standard of proof for ordinary civil cases requires the party who bears the burden of proof to establish by a preponderance of the evidence that the facts alleged are true. In contrast, the prevailing standard of proof for civil cases in civil-law systems is indistinguishable from the standard for criminal cases: the judge must be firmly convinced that the facts alleged true. This striking difference in common-law and civil-law procedures has received very little attention from either civilian or comparative scholars.
The preponderance standard applied in common-law systems is openly probabilistic and produces, on average, more accurate results. This makes continued civilian adherence to a standard of virtual certainty mysterious. The article offers both historical reasons for the divergence between common-law and civil-law standards of proof and tentative explanations for the modern persistence of a high standard of proof in civil-law countries. The most plausible of these explanations is that the high civil-law standard conveys an impression of accuracy and certainty, and thus enhances the perceived legitimacy of judicial decisions. Increasing public confidence in adjudication is a valid procedural objective, but in this case carries costs in terms of accuracy and informed development of evidentiary doctrine.
Number of Pages in PDF File: 34Accepted Paper Series
Date posted: October 9, 2001
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