34 Pages Posted: 9 Oct 2001
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.
Suggested Citation: Suggested Citation
Sherwin, Emily L. and Clermont, Kevin M., A Comparative View of Standards of Proof. American Journal of Comparative Law, Vol. 50, p. 243, 2002; U of San Diego Public Law Research Paper No. 32. Available at SSRN: https://ssrn.com/abstract=285832 or http://dx.doi.org/10.2139/ssrn.285832
By Orin Kerr
By Edward Cheng