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The civil standard of proof – what is it, actually?

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  • Mark Schweizer

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    (Max Planck Institute for Research on Collective Goods, Bonn)

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    Abstract

    Common Law distinguishes two standards of proof applicable in civil and criminal matters, respectively. The criminal standard of “beyond reasonable doubt” is much higher than the “preponderance of the evidence” standard used in civil cases. Continental European Civil Law, on the other hand, recognizes just one standard of “full conviction” applicable 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, when asked directly, the members of court express a high decision threshold in line with legal doctrine and case law. But when Swiss judges are asked to estimate the error costs associated with each outcome and the error-cost-minimizing decision threshold is calculated based on the responses, the resulting standard is no different from the Common Law’s “preponderance of the evidence” standard. When using the stated degree of belief in the truth of the plaintiff’s allegations as a predictor for the grant of the plaintiff’s request in a civil action, the probability of grant is 50% at a stated conviction of only 63%. It is further shown that the decision threshold is influenced by the individual’s loss aversion, with individuals with a higher loss aversion having a higher decision threshold. 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 Swiss judges is not much different from the Common Law’s “preponderance of the evidence” standard, despite the doctrinal insistence to the contrary.

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    Paper provided by Max Planck Institute for Research on Collective Goods in its series Working Paper Series of the Max Planck Institute for Research on Collective Goods with number 2013_12.

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    Date of creation: Jul 2013
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    Handle: RePEc:mpg:wpaper:2013_12

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    1. Tversky, Amos & Kahneman, Daniel, 1992. " Advances in Prospect Theory: Cumulative Representation of Uncertainty," Journal of Risk and Uncertainty, Springer, vol. 5(4), pages 297-323, October.
    2. Ernst Fehr & Lorenz Gotte, 2002. "Do workers work more if wages are high? Evidence from a randomized field experiment," Natural Field Experiments 00240, The Field Experiments Website.
    3. Nathalie Etchart-Vincent & Olivier L'Haridon, 2011. "Monetary incentives in the loss domain and behavior toward risk: An experimental comparison of three reward schemes including real losses," Université Paris1 Panthéon-Sorbonne (Post-Print and Working Papers) hal-00742027, HAL.
    4. Charles A. Holt & Susan K. Laury, 2002. "Risk Aversion and Incentive Effects," American Economic Review, American Economic Association, vol. 92(5), pages 1644-1655, December.
    5. Matthew Rabin, 2001. "Risk Aversion and Expected Utility Theory: A Calibration Theorem," Levine's Working Paper Archive 7667, David K. Levine.
    6. Drazen Prelec, 1998. "The Probability Weighting Function," Econometrica, Econometric Society, Econometric Society, vol. 66(3), pages 497-528, May.
    7. Camerer, Colin F. & Hogarth, Robin M., 1999. "The Effects of Financial Incentives in Experiments: A Review and Capital-Labor-Production Framework," Working Papers, California Institute of Technology, Division of the Humanities and Social Sciences 1059, California Institute of Technology, Division of the Humanities and Social Sciences.
    8. Shamena Anwar & Patrick Bayer & Randi Hjalmarsson, 2012. "The Role of Age in Jury Selection and Trial Outcomes," NBER Working Papers 17887, National Bureau of Economic Research, Inc.
    9. Tversky, Amos & Kahneman, Daniel, 1991. "Loss Aversion in Riskless Choice: A Reference-Dependent Model," The Quarterly Journal of Economics, MIT Press, MIT Press, vol. 106(4), pages 1039-61, November.
    10. Eyal Zamir & Ilana Ritov, 2012. "Loss Aversion, Omission Bias, and the Burden of Proof in Civil Litigation," The Journal of Legal Studies, University of Chicago Press, University of Chicago Press, vol. 41(1), pages 165 - 207.
    11. Beattie, Jane & Loomes, Graham, 1997. "The Impact of Incentives upon Risky Choice Experiments," Journal of Risk and Uncertainty, Springer, vol. 14(2), pages 155-68, March.
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