Law Commons^™

Standards Of Proof Revisited, Kevin M. Clermont

Cornell Law Faculty Publications

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 …