Document Type


Publication Date

Spring 2009


Proof, Common law


Civil Law | Evidence


This Essay focuses not on how fact-finders process evidence but on how they apply the specified standard of proof to their finding. The oddity that prompts speculation is that, in noncriminal cases, the common law asks only that the fact appear more likely than not, while the Civil Law seems to apply the same high standard in these cases as it does in criminal cases. As a psychological explanation of the cognitive processes involved, some theorists posit that the bulk of fact-finding is an unconscious process, powerful but dangerous, which generates a level of confidence against which the fact-finder could apply the standard of proof. But this foggy confidence-based theory fails because standards of proof should, and factfinders arguably do, concern themselves with probability rather than confidence. Psychology also cannot explain the divide between the common law and the Civil Law because the real explanation likely lies in the different goals that the two procedural systems pursue through their standards of proof.


Issued as part of a symposium entitled: Emotions in Context: Exploring the Interaction between Emotions and Legal Institutions.

Publication Citation

Vermont Law Review, vol. 33, no. 3 (Spring 2009).