Standards of proof, Theory of proof
Academics have never quite understood the standards of proof or, indeed, much about the theory of proof Their formulations beget probabilistic musings, which beget all sorts of paradoxes, which in turn beget radical reconceptions and proposals for reform. The theoretical radicals argue that the law needs some basic reconception such as recognizing the aim of legal proof as not at all a search for truth but rather the production of an acceptable result, or that the law needs some shattering reform such as greatly heightening the civil standard of proof on each part of the case to ensure a more-likely than- not overall result.
This Article refutes all those baroque rereadings. It shows that the standards of proof properly understood on the law's own terms without a probabilistic overlay, work just fine. The law tells factfinders to compare their degree of belief in the alleged fact to their degree of contradictory disbelief. Obeying that instruction resolves mathematically the paradoxes that traditional probability theory creates for itself Most surprising, the burden of proof by which the proponent must prove all the elements and the opponent need disprove only one, does not produce an asymmetry between the parties.
The law's standards of proof need no drastic reconception or reform, because the law knew what it was doing all along. It deals with factual beliefs in a world that will remain uncertain, not with the odds of the facts becoming certain. And the well-established mathematics of beliefs are not the mathematics of odds.
Kevin M. Clermont, Staying Faithful to the Standards of Proof, 104 Cornell L. Rev. 1457
Available at: https://scholarship.law.cornell.edu/clr/vol104/iss6/2