Evidence Assessment and Standards of Proof: a Messy Issue

Abstract

The article distinguishes evidence assessment criteria from standards of proof and addresses three main questions. First: why do some scholars and decision-makers take assessment criteria as standards of proof and vice versa? The answer comes from the fact that some legal systems are more concerned with assessment criteria and others with standards; therefore, jurists educated in different contexts tend to emphasize what they are more familiar with, and to assimilate to it what they are less familiar with. Second: why do systems differ in those respects? Here the answer stems from the historical, institutional and procedural differences that explain why some systems are more concerned with assessment criteria and others with standards of proof. And third, assuming that both criteria and standards are necessary to legal decision-making about facts: how can a system work if it neglects one of these things? Here the article argues that there is a functional connection between criteria and standards. The functional connection account is distinguished from a functional equivalence account, and some systems and jurisdictions are referred to in greater detail to support the functional connection claim