The Difference between Blackstone-Like Error Ratios and Probabilistic Standards of Proof

1996 ◽  
Vol 21 (01) ◽  
pp. 95-132 ◽  
Author(s):  
Michael L. DeKay
Keyword(s):  
Reasonable Doubt ◽  
Decision Threshold ◽  
Simple Manner ◽  
Standard Of Proof ◽  
Error Ratio ◽  
Standards Of Proof ◽  
The Difference ◽  
Judicial Errors

Statements regarding the ratio of erroneous acquittals to erroneous convictions are often thought to have clear implications for standards of proof. For example, Blackstone's comment that “it is better that ten guilty persons escape, than that one innocent suffer’ is believed by many to imply a precise numerical value for proof beyond a reasonable doubt. Specifically, jurors should vote to convict only if they are at least 91 % certain of the defendant's guilt. Unfortunately, the belief that this decision threshold will lead to the desired ratio of judicial errors is simply incorrect. Depending on (a) the accuracy with which juries discriminate between truly innocent and truly guilty defendants and (b) the proportion of defendants who are truly guilty, this probabilistic standard of proof may lead to any ratio of judicial errors, including those favoring conviction of the innocent over acquittal of the guilty. Although standards of proof cannot be equated with error ratios in a simple manner, the problem lies not with probabilistic decision thresholds but with the desire to achieve a certain error ratio.

scholarly journals Application of the Balance of Probabilities Standard of Proof in Judicial Practice

2020 ◽  
pp. 227-233
Author(s):  
Illia But
Keyword(s):  
Common Law ◽  
Convincing Evidence ◽  
Reasonable Doubt ◽  
Standard Of Proof ◽  
National Courts ◽  
Judicial Practice ◽  
European Court ◽  
The Usa ◽  
Standards Of Proof ◽  
The Uk

The paper describes key standards of proof used in common law countries: balance of probabilities and beyond reasonable doubt,applied in judicial practice in the UK, and the criminal standard beyond reasonable doubt, civil standard preponderance of evidence,and interim standard clear and convincing evidence, applied in judicial practice in the USA. The author identifies main conditions for application of the balance of probabilities standard in foreign judicial practice: 1) thisstandard is not merely a surmise based on guesses or suspicions; such surmise shall be based on certain evidence, which in total is notenough to establish presence or absence of a certain fact unequivocally; 2) the graver is an allegation, the less probable is the occurrenceof the fact, and hence it must be proved with harder evidence; 3) the less probable is an event, the more evidence there must be to provethat it might have truly occurred; 4) there is no direct connection between graveness of an allegation (consequences) and probability ofan event: some grave harmful conduct may be fairly common or, on the contrary, may happen rather infrequently.The paper identifies step-by-step implementation of standards of proof in practice of the European Court of Human Rights(ECHR): at the first stage one can find references to standards of proof only in cases against the United Kingdom; at the second stagethere are judgments made on complaints against other countries, though in such judgments the ECHR does not assess standards ofproof, but merely reflects that those have been applied by national courts. At the third (contemporary) stage the ECHR only distingui -shes between application of standards of proof in criminal and quasi-criminal cases.The author concludes on the basis of study of empirical data that the balance of probabilities standard of proof is already appliedin the national judicial practice, however principles of its application in the judicial practice have not been developed yet. It is notedthat though the doctrine of the standards of proof was developed in the common law countries, application thereof does not contradictthe concept of judicial activism: an idea, according to which a decision must be made in favour of the party, whose statements are reliablenot per se, but in comparison with statements of the adverse party, enables courts to make judgments in cases when positions ofboth sides are impeccable, and evidence for unequivocal conclusions is not enough.

Part V Fairness and Expeditiousness of ICC Proceedings, 34 The International Criminal Standard of Proof at the ICC—Beyond Reasonable Doubt or Beyond Reason?

2015 ◽  
Author(s):  
Smet Simon De
Keyword(s):  
International Criminal ◽  
Essential Feature ◽  
Reasonable Doubt ◽  
Standard Of Proof ◽  
Standards Of Proof ◽  
Complex Balancing ◽  
Fact Finding ◽  
Definition Of

Standards of proof are a common and essential feature of modern systems of adjudication. The definition of the criminal standard of proof before the ICC has, however, not been a straightforward matter. The Katanga judgment shows deep divisions among the judges on the interpretation of the international criminal standard of proof. This chapter discusses the theoretical choices involved in setting the standard of proof. It argues that any meaningful discussion of standards of proof must involve two different elements: the determination of a model of judicial fact-finding to determine how the standard of proof can be defined, and a complex balancing exercise of all the relevant interests in order to set the applicable standard.

Part II Burden and Standard of Proof in International Investment Arbitration, 5 Different Standards of Proof in Investor-State Arbitration

2018 ◽  
Author(s):  
Sourgens Frédéric Gilles ◽  
Duggal Kabir ◽  
Laird Ian A
Keyword(s):  
Criminal Law ◽  
International Investment ◽  
Prima Facie ◽  
Reasonable Doubt ◽  
Standard Of Proof ◽  
Investment Arbitration ◽  
Standards Of Proof

This chapter highlights the three commonly identified standards of proof in investor-state arbitration. The first is the prima facie evidence standard, which involves an examination of the facts as alleged by the claimant to see whether such facts would amount to a breach of the treaty and otherwise fall within the jurisdiction of the tribunal. The second standard is the preponderance of evidence or the balance of probabilities. This standard requires an evaluation of all the evidence produced by both parties on a particular issue and this evaluation ultimately results in the tribunal determining which party’s evidence is more likely than not to be true. Finally, there is the heightened standard of proof. Here, the standard is higher than a balance of probabilities but lower than the criminal law standard of proof beyond reasonable doubt.

Moral Certitude: Merits and Demerits of the Standard of Proof Applied in Roman Catholic Jurisprudence

2019 ◽  
Vol 8 (2) ◽  
pp. 300-325
Author(s):  
Judith Hahn
Keyword(s):  
Catholic Church ◽  
Canon Law ◽  
Burden Of Proof ◽  
Roman Catholic ◽  
Convincing Evidence ◽  
Reasonable Doubt ◽  
Criminal Cases ◽  
Standard Of Proof ◽  
Standards Of Proof ◽  
Anglo American

Abstract In Roman Catholic canon law, moral certitude describes the ecclesiastical judge’s full conviction that a defendant is guilty or that a statement of claim made by a civil plaintiff is rightful. Moral certitude is the requirement for a conviction or a civil sentence in favour of the party under the burden of proof. Secular legal orders apply other standards. Anglo-American legal cultures mostly refer to the beyond a reasonable doubt standard in criminal cases, the preponderance of evidence, or the clear and convincing evidence standard in civil matters. Continental European cultures predominantly refer to the standard of full conviction in criminal and civil matters alike. This article compares those standards of proof with moral certitude in order to better understand its merits and limits. Based on this comparison, it examines the arguments both in favour of and against abiding with moral certitude as a standard of proof in the Catholic Church.

scholarly journals Climate scientists set the bar of proof too high

2021 ◽  
Vol 165 (3-4) ◽  
Author(s):  
Elisabeth A. Lloyd ◽  
Naomi Oreskes ◽  
Sonia I. Seneviratne ◽  
Edward J. Larson
Keyword(s):  
Public Policy ◽  
Public Communication ◽  
Central Question ◽  
Level Of Evidence ◽  
Intergovernmental Panel ◽  
Policy Makers ◽  
The Public ◽  
Standard Of Proof ◽  
Policy Context ◽  
Standards Of Proof

AbstractStandards of proof for attributing real world events/damage to global warming should be the same as in clinical or environmental lawsuits, argue Lloyd et al. The central question that we raise is effective communication. How can climate scientists best and effectively communicate their findings to crucial non-expert audiences, including public policy makers and civil society? To address this question, we look at the mismatch between what courts require and what climate scientists are setting as a bar of proof. Our first point is that scientists typically demand too much of themselves in terms of evidence, in comparison with the level of evidence required in a legal, regulatory, or public policy context. Our second point is to recommend that the Intergovernmental Panel on Climate Change recommend more prominently the use of the category “more likely than not” as a level of proof in their reports, as this corresponds to the standard of proof most frequently required in civil court rooms. This has also implications for public policy and the public communication of climate evidence.

scholarly journals Standards of Proof and Civil Litigation: A Game-Theoretic Analysis

2018 ◽  
Vol 19 (1) ◽  
Author(s):  
Alice Guerra ◽  
Barbara Luppi ◽  
Francesco Parisi
Keyword(s):  
Critical Role ◽  
Policy Instrument ◽  
Civil Litigation ◽  
Access To Justice ◽  
Standard Of Proof ◽  
Game Theoretic Analysis ◽  
Standards Of Proof ◽  
Game Theoretic ◽  
Truth Finding ◽  
Selection Of

AbstractIn litigation models, the parties’ probability to succeed in a lawsuit hinge upon the merits of the parties’ claims and their litigation efforts. In this paper we extend this framework to consider an important procedural aspect of the legal system: the standard of proof. We recast the conventional litigation model to consider how alternative standards of proof affect litigation choices. We analyze the interrelation between different standards of proof, the effectiveness of the parties’ efforts, and the merits of the case. We study how these factors jointly affect the parties’ litigation expenditures, the selection of cases brought to the courts, pretrial bargain solutions and preemptive strategies. Our results show that standards of proof are not only instrumental to balancing the competing goals of access to justice and judicial truth-finding, but they also play a critical role in affecting parties’ litigation investments and settlement choices, and in sorting the mix of cases that will actually be filed and defended in courts. The understanding of the sorting effect of standards of proof sheds light on their role as a policy instrument in civil litigation.

scholarly journals STANDARDS OF PROOF: AID OR PITFALL?

Obiter ◽  
2021 ◽  
Vol 31 (3) ◽  
Author(s):  
Andra le Roux-Kemp
Keyword(s):  
General Public ◽  
Natural Sciences ◽  
Point Of View ◽  
Pivotal Role ◽  
Legal Proceedings ◽  
Standard Of Proof ◽  
Legal Science ◽  
Standards Of Proof ◽  
Responsible Party

During the course of legal proceedings, evidentiary material is analyzed and evaluated in order to make a final judgement whether the responsible party has discharged the onus of proof. The existence of a standard of proof against which the presiding officer can measure the evidence submitted consequently plays a pivotal role. This standard of proof (bewysmaatstaf) represents the standard of guilt in legal science and has also been described as a standard of conviction. The standard of proof does not pertain to the inherent qualities of evidentiary material, but rather to the degrees of conviction of the presiding officer in a particular case. The function of thestandard of proof is furthermore to provide presiding officers with a guideline/yardstick to measure the degree of conviction that the general public believe the presiding officer should have over the correctness of all the factual conclusions in the particular proceedings. In this article, the standard of proof in law will be discussed from a comparative point of view; different standards of proof from different jurisdictions will be considered and juxtaposed against similar standards used in the natural sciences.

PUENTES ENTRE LOS HECHOS Y EL DERECHO APLICABLE EN LA VERIFICACIÓN PROBATORIA: ESTANDAR Y VALORACIÓN DE LA PRUEBA

2021 ◽  
Vol 29 (116) ◽  
pp. 1-25
Author(s):  
Álvaro Pérez Ragone
Keyword(s):  
Decision Makers ◽  
Legal Argumentation ◽  
Criminal Process ◽  
Standard Of Proof ◽  
Legal Standards ◽  
Standards Of Proof ◽  
The Subject ◽  
Per Se ◽  
Basic Minimum ◽  
Evidentiary Standard

The legal argumentation on controversial facts deals with the evidence that allows reaching a precise verdict on the facts. The evidence is necessary to support the factual assertions made by the parties and the conclusions of fact made by the decision makers. But the test per se does not yield verdicts. The evidence must be evaluated and whoever decides must consider whether or not it satisfies a basic minimum to consider a fact proven, if it meets a standard of proof. Much work has been done on the subject of legal standards of proof. Legal argumentation theorists, evidence scholars, civil and criminal process scholars, among others, have extensively addressed this issue. Some of them have made an analytical effort to clarify the idea of an evidentiary standard; others have done descriptive work to understand how the standards actually work; Others have done a kind of normative work in the hope of suggesting better or at least better defined standards; and the best contributions to the debate do more than one of these things at the same time.

scholarly journals Uncertain Certainty?: Making Sense of the European Court of Human Rights’ Standard of Proof

2019 ◽  
Vol 8 (2) ◽  
pp. 155-187
Author(s):  
Christine Bicknell
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Detailed Examination ◽  
Reasonable Doubt ◽  
Standard Of Proof ◽  
Making Sense ◽  
European Court ◽  
Single Standard ◽  
High Level

The European Court of Human Rights (ECtHR) declares a single standard of proof (‘SoP’): proof beyond reasonable doubt (‘brd’). Yet the accuracy of this claim and the threshold’s appropriateness have both been challenged. This article uniquely considers and clarifies the Court’s interpretation and application of its SoP. Demonstrating SoP is capable of both broad and narrow interpretations, it shows the Court interprets SoP only narrowly. This understanding confirms brd as the applicable standard, whose use is then considered through detailed examination of the case law. The analysis shows that although the Court’s conception and approach to brd necessarily accommodate some doubt, violations are found with a consistently high level of certainty. There is however, a striking inconsistency in references made to the Rules of Court. Moreover, the Rules do not fully capture the Court’s approach. Addressing this, as the article proposes, would strengthen both the consistency and legitimacy of relevant decisions.

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