Standards of Proof: Aid or Pitfall?
Le Roux-Kemp, "Standards of proof: Aid or pitfall?" Obiter 2010 31(3) 686-701.
16 Pages Posted: 26 Jun 2014
Date Written: June 25, 2009
This article is not concerned with the process whereby probative material is analyzed, assessed and weighed, nor is the primary concern the burden of proof. While reference will be made to these legal processes and principles, this article will rather focus on the standards of proof that have crystallized from case law and literature: proof on a balance of probabilities, clear and convincing proof, proof beyond a reasonable doubt, proof to a moral certainty, absolute proof and the civil law standard of intime conviction. These standards of proof will be juxtaposed against the scientific method of factfinding and reasoning, which is largely based on statistical calculations of frequency. In section two of this article the development of the standards of proof in law and science will briefly be sketched. Section three will provide an evaluation on the standards of proof in law and section four will focus on the application of these standards of proof as cognitive processes in legal matters. It will be argued in this article that mathematical calculations and probability theories cannot form the foundation of the legal reasoning process, as legal reasoning is a distinctive cognitive process whereby probative material is analyzed and assessed; a cognitive process that generates a level of confidence against which the factfinder can apply the relevant standard of proof.
Keywords: Standard of proof, Burden of proof, Proof on a balance of probabilities, Clear and convincing proof, Beyond a reasonable doubt, Proof to a moral certainty, Intime conviction, Absolute certainty, Probability theory
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