Standards of proof, Trials
Civil Law | Civil Procedure | Common Law | Comparative and Foreign Law
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 are 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.
Clermont, Kevin M. and Sherwin, Emily, "A Comparative View of Standards of Proof" (2002). Cornell Law Faculty Publications. Paper 222.
Published in: The American Journal of Comparative Law, vol. 50, no. 2 (Spring 2002).