2. Burden and Standard of Proof

Evidence ◽

10.1093/he/9780198806844.003.0002 ◽

2018 ◽

Author(s):

Andrew L-T Choo

Keyword(s):

Criminal Trial ◽

Standard Of Proof ◽

Civil Trial

Chapter 2 is divided into two parts. The first part is concerned with the manner in which a dispute as to which party bears the burden of proving a particular issue in a trial should be resolved. The question may arise in a criminal trial as to whether it is the prosecution or defence which bears the burden of proving a certain issue, and in a civil trial as to whether it is the claimant or defendant who bears the burden of proving a certain issue. The second part focuses on the standard to which the burden of proving a particular issue requires to be discharged.

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Civil liability and the 50%+ standard of proof

The International Journal of Evidence & Proof ◽

10.1177/13657127211011207 ◽

2021 ◽

pp. 136571272110112

Author(s):

Martin Smith

Keyword(s):

Civil Liability ◽

Alternative Interpretation ◽

Standard Of Proof ◽

Civil Trials ◽

Civil Trial

The standard of proof applied in civil trials is the preponderance of evidence, often said to be met when a proposition is shown to be more than 50% likely to be true. A number of theorists have argued that this 50%+ standard is too weak—there are circumstances in which a court should find that the defendant is not liable, even though the evidence presented makes it more than 50% likely that the plaintiff’s claim is true. In this paper, I will recapitulate the familiar arguments for this thesis, before defending a more radical one: The 50%+ standard is also too strong—there are circumstances in which a court should find that a defendant is liable, even though the evidence presented makes it less than 50% likely that the plaintiff’s claim is true. I will argue that the latter thesis follows naturally from the former once we accept that the parties in a civil trial are to be treated equally. I will conclude by sketching an alternative interpretation of the civil standard of proof

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The Problem of the Prior in Criminal Trials

10.1093/oso/9780198859307.003.0020 ◽

2021 ◽

pp. 287-300

Author(s):

Christian Dahlman ◽

Eivind Kolflaath

Keyword(s):

Bayesian Approach ◽

Prior Probability ◽

Geographical Area ◽

Criminal Trial ◽

Presumption Of Innocence ◽

Criminal Trials ◽

Standard Of Proof ◽

The Bayesian Approach

This chapter addresses a classical challenge to the Bayesian approach. It examines different ways of setting the prior probability of the prosecutor’s hypothesis in a criminal trial, in particular, the classical Bayesian solution of setting the prior at 1/N, where N is the number of possible perpetrators in the geographical area where the crime was committed. The authors argue that this solution is at odds with the presumption of innocence, and that other proposals are also problematic, either theoretically or in practice. According to the authors, a presumed prior determined ex lege is less problematic than other solutions, and the problem of the prior can be avoided by a reconceptualization of the standard of proof.

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Differentiation of civil and criminal trial in the Moscow State: a retrospective analysis

Russian Journal of Legal Studies ◽

10.17816/rjls18211 ◽

2016 ◽

Vol 3 (2) ◽

pp. 270-275

Author(s):

E E Haschina

Keyword(s):

Retrospective Analysis ◽

Criminal Trial ◽

Criminal Cases ◽

Legal Proceedings ◽

Xvii Century ◽

Single Form ◽

Civil Trial

This article deals with the problem of historic differentiation of criminal and civil trial in the Moscow state. The author analyzes the characteristics of a single form of legal proceedings and attempt to determine the conditions of formation of «sysk» as procedural form for criminal cases. The conclusion of the incompleteness of the process of separation of criminal and civil trial in the XVII century.

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The Zeal of the Civil Advocate

American Bar Foundation Research Journal ◽

10.1111/j.1747-4469.1983.tb00883.x ◽

1983 ◽

Vol 8 (3) ◽

pp. 543-563 ◽

Cited By ~ 3

Author(s):

Murray L. Schwartz

Keyword(s):

Social Services ◽

Moral Dilemma ◽

Primary Objective ◽

Criminal Trial ◽

Personal Morality ◽

The Social ◽

Adversary System ◽

Professional Assistance ◽

Professional Representation ◽

Civil Trial

This article is concerned with the accountability of the civil advocate for results obtained for a client. It distinguishes the criminal trial by arguing that for effective implementation the adversary system, as it is commonly understood, requires that the professional advocates be equally competent and equally adversary and that because it does not meet these criteria, the criminal trial cannot be looked to as a model either of the adversary system or of the behavior of advocates in the civil trial. Rules of behavior for the civil litigator should be drawn with the primary objective of ascertaining truth. Moreover, the civil litigator cannot claim immunity from moral accountability by reference to the lawyer's role; he or she is personally accountable for an immoral result obtained for a client. Seeking to avoid this accountability all lawyers might reject an immoral but lawful cause, so that persons with such causes would be deprived of professional representation. The conflict between the lawyer's personal morality and the social value of professional assistance is resolved by reference to a formula for assigning counsel similar to those in Mathews v. Eldridge and Lassiter v. Department of Social Services. The author analyzes the moral dilemma of a lawyer who is so assigned and proposes a solution.

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Searching for Truth but Missing the Point

Alberta Law Review ◽

10.29173/alr1367 ◽

1969 ◽

pp. 333 ◽

Cited By ~ 1

Author(s):

Keith D. Kilback ◽

Michael D. Tochor

Keyword(s):

Policy Decision ◽

Criminal Trial ◽

Traditional View ◽

Reasonable Doubt ◽

Judicial Process ◽

Standard Of Proof ◽

Fundamental Point

This article explores the shift from the traditional conceptualization of a criminal trial as an independent testing of facts to the standard of proof beyond a reasonable doubt, to a more recent view of the trial as a search for the truth. perception The authors contend that the "search for truth " approach imports two major flaws into the judicial process. First, it is impossible for a trier off act to actually know the truth; and second, because the concept has never been judicially defined, its use allows courts to justify whatever policy decision is being made. The authors conclude that the traditional view remains the better view, because the fundamental point of a criminal trial is not to determine what is true, but rather to determine whether the accused is guilty beyond a reasonable doubt.

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Consequences of the Final Civil Decision in the Criminal Trial Pursuant to the Albanian Legislation

Academic Journal of Interdisciplinary Studies ◽

10.36941/ajis-2021-0155 ◽

2021 ◽

Vol 10 (6) ◽

pp. 82

Author(s):

Klodjan Skënderaj ◽

Naim Tota

Keyword(s):

Public Administration ◽

Criminal Court ◽

Criminal Trial ◽

Civil Court ◽

Legal Provisions ◽

Contractual Obligations ◽

Administrative Jurisdiction ◽

Civil Trial ◽

The Impact

Judicial jurisdictions are separated; the criminal court has the jurisdiction to adjudicate charges brought by the prosecution, whereas other jurisdictions are exercised by the civil court and the administrative court. Thus, civil cases or in other words disputes between private entities, such as contractual obligations or inheritance issues, etc., are settled by the civil court, while disputes between individuals and public administration fall within the scope of administrative jurisdiction. Therefore, depending on the type of case, in Albania there are courts with separate judicial jurisdictions. However, in quite a few cases we might face cases where the different judicial jurisdictions are interwoven between them, in other words the consequences of a civil trial can affect the criminal trial. This paper will analyze the legal provisions in Albania, how to act in cases of resolving a case with a final civil decision in relation to facts, which are also being adjudicated in the criminal process. This paper will also analyze the role of the final civil decision in the criminal trial. Domestic court practice will be considered in terms of the impact that a civilly resolved case by a final court decision has on a criminal case. Received: 31 May 2021 / Accepted: 31 September 2021 / Published: 5 November 2021

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