The civil standard of proof—what is it, actually?
| Published date | 01 July 2016 |
| Date | 01 July 2016 |
| DOI | 10.1177/1365712716645227 |
| Subject Matter | Articles |
Article
The civil standard of
proof—what is it, actually?
Mark Schweizer
Max Planck Institute for Research on Collective Goods, Germany
University of St. Gallen, Switzerland
Abstract
Unlike common law, Continental European civil law does not strictly distinguish between the
standards of proof applicable in civil and criminal matters, respectively. In civil law countries
such as Germany and Switzerland, judges are supposed to use the same (high) standard of ‘full
conviction’ in both criminal and civil cases. This study is the first to look at the standard of
proof actually used by judges and judicial clerks in a civil law country (Switzerland). It is shown
that the standard actually used differs from the one normatively prescribed. No difference
between the estimated decision threshold for members of the courts and members of the
general population is found. The results suggest that the standard of proof actually employed by
judges of a civil law system is not much different from the common law’s ‘preponderance of the
evidence’ standard, despite the doctrinal insistence to the contrary.
Keywords
comparative law, decision theory, empirical legal study, preponderance of the evidence,
standard of proof
Introduction
Common law knows (at least) two different standards of proof, the ‘preponderance of the evidence’—or
‘balance of probabilities’ in English law—for civil cases and the ‘proof beyond reasonable doubt’ in
criminal cases.
1
In US law, a further intermediate standard of proof known as ‘clear and convincing
evidence’, which is applicable in certain civil cases (e.g. civil fraud), is well-established,
2
while it is a
matter of controversy whether English law recognises such an intermediate standard of proof (Anderson
et al., 2006: 243; McBride, 2009: 325ff).
Corresponding author:
Mark Schweizer, Max Planck Institute for Research on Collective Goods, Kurt-Schumacher-Str. 10, D-53113 Bonn, Germany.
Email: mark.schweizer@gmail.com
1. See Addington vTexas, 441 U.S. 418 (1979), 422, 423; for English law In Re H & Others (minors) [195] UKHL 16, AC [1995]
563, s. 76; Wright (2009: 80).
2. See e.g. Addington vTexas 441 U.S. 418 (1979) at 422, 423.
The International Journalof
Evidence & Proof
2016, Vol. 20(3) 217–234
ªThe Author(s) 2016
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DOI: 10.1177/1365712716645227
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Unlike common law, Continental European civil law does not generally distinguish between stan-
dards of proof for civil and criminal matters (Engel, 2009: 435; Motsch, 2009: 242). Standard of proof is
always the (full) conviction of the judge, be it a conviction intime or a conviction raisonne
´e, a reasoned
or reasonable conviction (meaning that the judge must justify his or her decision by valid arguments).
3
The insistence of civil law that the standard of proof in civil cases is ‘full conviction’, meaning ‘near
certainty’—notwithstanding many exceptions—has left common law lawyers puzzled. In a strongly
worded article, Kevin M Clermont and Emily Sherwin ‘rudely wonder[ed] how civilians can be so
wrong’ (Clermont and Sherwin, 2002: 244). The article has met with an equally strongly worded rebuttal
(Taruffo, 2003), but also a renewed interest of civilians in standards of proof (Engel, 2009; Kinsch, 2009;
Motsch, 2009). Clermont and Sherwin have not, however, been convinced that their original analysis,
which came to the conclusion that civil law values the perceived legitimacy of the court system higher
than a rational approach to judicial decision making, was wrong (Clermont, 2009).
Scholars have wondered for a long time whether civilian judges actually adhere to the high standard
proclaimed by case law and doctrine (Clermont and Sherwin, 2002: 261; Einmahl, 2001: 474ff.;
Rechberger, 1990: 490; Zamir and Ritov, 2012: 172). So far, no empirical study tried quantifying the
standard of proof actually employed in civil matters by judges in a civil law country. This paper reports
the results of the first such study. It demonstrates that the standard of proof that Swiss judges and judicial
clerks proclaim to adhere to when asked directly is much higher than the standard of proof that would
result if the decision threshold was chosen to minimise the expected error costs of the decision even when
the error costs are obtained from the subjects. It also estimates that there is a 50%probability that a
request in a civil action will be granted when the judge is convinced only to a degree of 63%that the
factual allegations supporting the claim are true. This decision threshold is no different from that
estimated for a sample of the general German population. It is also comparable to the decision threshold
of 70 estimated for Israeli trial lawyers by Zamir and Ritov, although Israel adheres to the common law’s
‘preponderance of the evidence’ standard in civil matters.
4
The results suggest that the standard of proof
actually employed by courts in Switzerland, a traditional civil law country, is much lower than the
standard proclaimed by the doctrine and case law.
The rest of this paper is structured as follows: First, the different standards of proof in civil matters by
common law and by Continental European civil law are exposed. Subsequently, three different methods
of measuring the standard of proof are described. In the next section, the hypotheses to be tested are
stated. This is followed by a description of the method of the study and the sample of Swiss judges and
judicial clerks participating in the study. The results of the study are then reported, followed by a
discussion of them.
Different standards of proof in civil matters in common law and
Continental European Law
The ‘preponderance of the evidence’ standard of US law is explained in the Federal Jury Practice and
Instructions as follows (O’Malley et al., 2001: § 166.51):
To ‘establish by a preponderance of the evidence’ means to prove that something is more likely so than not so.
In other words, a preponderance of the evidence in the case means such evidence as, when considered and
compared with that opposed to it, has more convincing force, and produces in your minds belief that what is
sought to be proved is more likely true than not true. This rule does not, of course, require proof to an absolute
certainty, since proof to an absolute certainty is seldom possible in any case.
3. The standard of proof in Germany is better described as a ‘conviction raisonne´e’ rather than the French ‘conviction intime’; see
Deppenkemper (2004: 208ff., 421 and the references cited therein).
4. Zamir and Ritov (2012: 177). Zamir and Ritov did not use a percentage scale, but rather a scale from 0 to 100 (without
indication of percentages).
218 The International Journal of Evidence & Proof 20(3)
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