It’s well known that for someone to be found guilty of a crime, the decision-maker must be persuaded “beyond a reasonable doubt”. This is the standard of proof. In civil claims, the standard is “on the balance of probabilities”.
In criminal matters, the onus of proving to this standard is on the prosecution; and in civil claims it is on the plaintiff.
In this episode we discuss what all this means in practice, and note that in the majority of all court matters it doesn’t reach this stage because the defendant pleads guilty or the civil claim is settled without trial.
This is said to be different in civil code systems such as France, but although there are major differences in procedure, the required standard actually seems to be similar.
We promise to give listeners our opinion on which system is better – in episode 1000!
TRANSCRIPT
Stephen Bottomley
In Episode 2 we looked at the adversarial system of trial. We saw that each party to a legal dispute – plaintiff and defendant; prosecution and accused – is responsible for presenting their side of the argument as best as they can.
Stephen Parker
But it is not a free-for-all fight. There are rules that govern the evidence that the parties can introduce into court, and there are rules about which party has the onus of proving that evidence, and how ‘strong’ their case must be.
[We’ll look at the law of evidence in another episode. ]Today, we look at what lawyers refer to as ‘the burden of proof’ and ‘the standard of proof’.
Stephen Bottomley
Generally, in civil cases, the plaintiff – the person who is suing – bears the burden (or onus) of proof. This makes sense because they have the grievance and they have initiated the action. It would be unfair for the system to say to the defendant, ‘ok, you’re being sued and unless you prove otherwise, the plaintiff wins’
In criminal cases, the prosecution bears the burden of proof. If the state wants to use the force of the legal system to impinge on the liberty of a citizen, then the state has to prove its case. As is well known, in criminal law, a person is presumed to be innocent until they are proven guilty.
Stephen Parker
So, that’s the burden of proof. What about the standard of proof? In civil cases – such as negligence, defamation – the standard is the balance of probabilities. A judge (or jury, if there is one) must be ‘reasonably satisfied’ that it is more likely than not that the alleged facts occurred. It is not just a question of weighing the amount of evidence on either side of the argument; the critical question is whether the judge is persuaded by the evidence for one side or another. So, although the use of the word ‘probability’ carries mathematical connotations, this is not a mathematical exercise.
Stephen Bottomley
In criminal proceedings, as most listeners would have heard, the standard is ‘beyond reasonable doubt’. What does this mean? Well, strangely, the judge in trial does not have to explain the meaning of this phrase to the jury (if there is one). This is because the courts believe that the phrase is understood by the average person.
The criminal standard sets the bar higher than the civil standard. There are differing explanations for this. An economist might argue that the cost of the sanction imposed upon the criminal – particularly if it is imprisonment – is not counterbalanced by benefits of equal value for society. So, there are net costs to society when a criminal is convicted. Therefore, we should set the standard high; false ‘not guilty’ findings are ‘cheaper’ than false convictions
Stephen Parker
Another explanation is that through the criminal standard of proof, the law signals the balance that society wants to maintain between punishing the guilty and protecting the innocent. It is possible that a person who has in fact committed an offence may be found not guilty because the prosecution cannot adduce evidence sufficient to meet the standard. That is a necessary consequence of a legal system that is premised on protecting ideas of freedom from interference and the liberty of the person. It is summed up in the famous statement of William Blackstone, an English jurist who, in the 1760s said ‘It is better that ten guilty persons escape [conviction] than that one innocent suffer’.
Stephen Bottomley
In corporate law there is a type of liability that falls between civil and criminal. It is called a civil penalty, and it is a statutory invention that applies the civil standard of proof. It was introduced because of concerns that the stigma of criminal prosecution might discourage directors from making proper entrepreneurial decisions.
Stephen Parker
A court only needs to consider the standard of proof, whether it be civil or criminal, if the case is contested in court. In civil cases, the parties may decide to settle the matter before trial; the court then issues an order that formalises the settlement. Common law countries, such as the U.S., U.K., and Australia, tend to have the high settlement rates. Countries with legal systems based on French civil law, such as France and Belgium, tend to have the lowest settlement rates.
Stephen Bottomley
In criminal cases the defendant may plead guilty. All that is then required is for the judge to decide on the sentence to be imposed. This is, in fact, the most common way in which criminal cases are dealt with. Australian data for 2019-20 shows that nearly 80% of defendants in criminal cases pleaded guilty.
We have to be careful with those numbers because there are many reasons why parties settle or defendants plead guilty. In criminal cases, a guilty plea is often entered in the hope of receiving a reduced sentence. We’ll look at this in a future episode. For now, the point is simply that courts only have to directly consider the standard of proof in a minority of cases that are initiated in the legal system.
That does not mean that the standard of proof is irrelevant in those cases. The decision to settle a case before trial, for example, will likely be made with one eye on whether a party is likely to meet the standard. This has been described as negotiation ‘in the shadow of the law’.
Stephen Parker
Even the criminal standard of proof does not require 100% or absolute certainty. This would be impossible: in most cases there are gaps in the evidence; witness memories fade or are unreliable; one piece of evidence contradicts another without any way of deciding which is correct. As we emphasised when we talked about the adversarial system, in neither civil nor criminal trials are the courts directly seeking the ‘truth’.
Stephen Bottomley
It is possible that a person might find themselves subject to both of these standards for the same facts. Imagine that a driver who is over the prescribed alcohol limit collides with another vehicle causing injury to someone in that car. The driver may be prosecuted for drink driving, but they might also face a civil suit by the owner of the other car and the injured person for monetary damages.
Each case will be focused on the same set of facts, but each will be decided by its own standard of proof. The cases are independent of each other and will be tried in different courts, although a conviction on the criminal standard is likely to be influential in the civil action. There might even be no point in contesting it.
Stephen Parker
To put all this in context, the situation is said to be quite different in civil law systems, such as France. We saw in episode 2 that the inquisitorial approach in civil law systems is much more judge-led. It is an inquiry by the judge rather than a jousting match between the parties presided over by a referee kind of judge.
Stephen Bottomley
This fundamental difference flows through to ideas of what proof is and what standard of proof is required. Broadly speaking, evidence law in France is much less technical. In fact there is much less of it.
A lot is left to the professionalism of the judge, so much so that the judge is not obliged to accept an accused’s confession. They have to decide for themselves if the accused is guilty.
Stephen Parker
Having said all this, there is still a standard of proof at work even if the judge decides for themself how they got there. Listen to these extracts from article 427 of the French Code of Criminal Instruction, in particular how it ends:
The law does not prescribe rules according to which the completeness or the sufficiency of the evidence can be determined, … The law asks only one question which sums up your entire duty: Are you thoroughly convinced?
Stephen Bottomley
This all makes sense if you remember that the judge in an inquisitorial system directs how a case should proceed, and even if there is a jury, it is a jury of lay people sitting alongside judges, not on their own. Perhaps you don’t need all the detailed rules of the game that you need in the adversarial system, and where in serious matters there is a lay jury coming to their decision in private.
Stephen Parker
We have both recently watched the French film Anatomy of a Fall, and were struck by how fundamentally different the criminal trial procedure was, compared with, say, the American film Presumed Innocent.
Stephen Bottomley
So which system would you prefer to be an accused in? We will give you our answer in episode 1000.