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Standards Of Proof Revisited, Kevin M. Clermont
Standards Of Proof Revisited, Kevin M. Clermont
Kevin M. Clermont
This Essay focuses not on how fact-finders process evidence but on how they apply the specified standard of proof to their finding. The oddity that prompts speculation is that, in noncriminal cases, the common law asks only that the fact appear more likely than not, while the Civil Law seems to apply the same high standard in these cases as it does in criminal cases. As a psychological explanation of the cognitive processes involved, some theorists posit that the bulk of fact-finding is an unconscious process, powerful but dangerous, which generates a level of confidence against which the fact-finder could …
Surveying Work Product, Kevin M. Clermont
Surveying Work Product, Kevin M. Clermont
Kevin M. Clermont
Work product is the legal doctrine that central casting would send over. First, it boasts profundities, arising as it does from the colliding thrusts of our discovery and trial processes and from conflicting currents in our modified adversary system. Second, it will surface frequently, because the protected materials are commonly created by each side but uncommonly useful to the opponent. Third, it has generated a small mountain of lower-court case law, with the foothills forming a labyrinth of rules and wrinkles. In short, work product has for a couple of generations dramatically bewitched academics, bothered practitioners, and bewildered students. Significant …
Standards Of Proof In Japan And The United States, Kevin M. Clermont
Standards Of Proof In Japan And The United States, Kevin M. Clermont
Kevin M. Clermont
This article treats the striking divergence between Japanese and U.S. civil cases as to standards of proof. The civil-law Japan requires proof to a high probability similar to the criminal standard, while the common-law United States requires only that the burdened party prove the fact to be more likely than not. This divergence not only entails great practical consequences, but also suggests a basic difference in attitudes toward the process of trial. As to the historical causation of the difference in standards of proof, civil-law and common-law standards diverged in the late eighteenth century, probably because of one system’s French …
Procedure's Magical Number Three: Psychological Bases For Standards Of Decision, Kevin M. Clermont
Procedure's Magical Number Three: Psychological Bases For Standards Of Decision, Kevin M. Clermont
Kevin M. Clermont
So many procedural doctrines appear, after research and teaching, to trifurcate. An obvious example is that kind of standard of decision known as the standard of proof: what in theory might have been a continuum of standards divides in practice into the three distinct standards of preponderance of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt. Other examples suggest both that I am not imagining the prominence of three and that more than coincidence is at work. Part I of this essay describes the role of the number three in procedure, with particular regard to standards …