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Preponderance of the Evidence versus Intime Conviction. A Behavioural Perspective on a Conflict between American and Continental European Law

  • Christoph Engel


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

Most apparent differences between US and continental law lose their relevance once one looks beneath the doctrinal surface and checks how doctrine plays itself out in concrete cases. One of the few exceptions is standards of proof. Not only distinguishes US law between "preponderance of the evidence" and "beyond a reasonable doubt". It even constructs proof differently. In the US, proof is an objective, science-like affair. On the continent, proof is holistic and subjective. The decision maker is called upon to form a personal conviction, and to take on personal responsibility for her assessment of the facts. What seems utterly mystic actually has a sound scientific base. Continental law capitalises on the power of intuition. Intuition relies on unconscious mental machinery. This apparatus processes huge amounts of information in almost no time. It is programmed to come up with an assessment even if the evidence is patently incomplete. It does so by multiple feedback loops. At the end of this procedure, evidence conflicting with the final decision is devalued, whereas evidence supporting the decision is given greater weight. While instrumental in making most of the available evidence, the mental mechanism is not error proof. One particularly troublesome implication precisely concerns standards of proof. Given the mechanism is designed to force a decision, one might be afraid that it mutes the difference between standards of proof. A more stringent standard would be neutralised by an even stronger devaluation of conflicting evidence. Happily an experiment shows that the concern is misplaced. A plausible explanation is this: the standard of proof instruction tags convicting an innocent defendant by a somatic marker. If this hypothesis could be proven true, the presumption of innocence would have been rescued by an emotion.

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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 2008_33.

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Date of creation: Aug 2008
Date of revision:
Handle: RePEc:mpg:wpaper:2008_33
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  1. Davis, Michael L, 1994. "The Value of Truth and the Optimal Standard of Proof in Legal Disputes," Journal of Law, Economics and Organization, Oxford University Press, vol. 10(2), pages 343-59, October.
  2. Christoph Engel, 2007. "Institutions for Intuitive Man," Working Paper Series of the Max Planck Institute for Research on Collective Goods 2007_12, Max Planck Institute for Research on Collective Goods.
  3. Christoph Engel & Andreas Glöckner, 2008. "Can We Trust Intuitive Jurors? An Experimental Analysis," Working Paper Series of the Max Planck Institute for Research on Collective Goods 2008_36, Max Planck Institute for Research on Collective Goods.
  4. Dominique Demougin & Claude Fluet, 2002. "Preponderance of Evidence," Cahiers de recherche CREFE / CREFE Working Papers 150, CREFE, Université du Québec à Montréal.
  5. John Conlisk, 1996. "Why Bounded Rationality?," Journal of Economic Literature, American Economic Association, vol. 34(2), pages 669-700, June.
  6. Sanchirico, Chris William, 1997. "The burden of proof in civil litigation: A simple model of mechanism design," International Review of Law and Economics, Elsevier, vol. 17(3), pages 431-447, September.
  7. Miceli, Thomas J, 1990. "Optimal Prosecution of Defendants Whose Guilt Is Uncertain," Journal of Law, Economics and Organization, Oxford University Press, vol. 6(1), pages 189-201, Spring.
  8. Daniel L. Rubinfeld & David E.M. Sappington, 1987. "Efficient Awards and Standards of Proof in Judicial Proceedings," RAND Journal of Economics, The RAND Corporation, vol. 18(2), pages 308-315, Summer.
  9. Dominique Demougin & Claude Fluet, 2004. "Deterrence vs Judicial Error: a Comparative View of Standards of Proof," Cahiers de recherche 0418, CIRPEE.
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