Since Nuremberg, every international or internationalized criminal tribunal (ICTY, ICTR, SCSL, ECCC, ICC, STL) has adopted hybrid proceedings: mixing, matching, and manipulating procedural modalities from common law and civil law systems. I use the plural for “systems” because there is no such thing as the common law system or the civil law system. There are small and large differences among the legal traditions. In common law systems one sees significant differences between the US model, virtually exclusive to the US, and the UK model, seen the world over in the Commonwealth and former UK colonies. The civil law systems can roughly be divided into two major models, the French model (with the investigative judge) and the German model, where the prosecutor charges and investigates, though even between each of these models there can be significant differences. And of course there are also what I would call the hybrid civil law systems, as in Italy, Bosnia and Herzegovina, Macedonia, and elsewhere, where adversarial modalities have been added to the proceedings, i.e., allowing the accused to gather evidence, permitting the parties to initiate the questioning of witnesses and to cross-examine opposing witnesses with leading questions, and even placing the burden of proof on the prosecution to a standard of proof beyond a reasonable doubt.
In this series of posts, I will attempt to shed some light on standards and burdens of proof in the common law and civil law systems, so one may better appreciate the challenges faced in the hybrid international criminal courts. Advocates dealing with judges as fact-finders from various legal traditions with various notions of the standard (quality and quantity) and burden (to whom the task is consigned) of proof need to understand how the judges before whom they are pleading have come to their understanding of their role and duties in criminal proceedings. If experience has shown anything, it is that judges – as well as prosecutors and counsel – are prisoners of their own legal traditions and habits. As one judge put it to me, since in his national jurisdiction judges have ex parte communications as a matter of practice and thus ineluctably or intuitively know the acceptable self-imposed, though impervious, limitations, there was no reason to dispense with this practice in international criminal proceedings. This is a clear example showing just how difficult it is for even conscientious judges to break with national habits and adapt to the proceedings; having ex parte communications in adversarial / party-driven systems is an anathema. It matters not what is or is not acceptable in a judge’s national jurisdiction. What matters is what is expected of the judge in the court he is in and by which law and procedural rules he has sworn to abide. But therein lies the conundrum. Not everything is spelled out in the statutes or rules of procedure and evidence, thus allowing the judges to pick and choose depending on their predilections or inclinations.
Be that as it may, knowing how evidence is admitted and assessed is, in my opinion, only part of the equation for effective advocacy. Equally important is getting into the judges’ heads: seeing how they process evidence, what habits they harbor due to their training and experience, etc. It helps the advocate to see where the judges are coming from when conducting proceedings. And since some judges will be unable or unwilling to adjust to the procedural rules as they were meant to be interpreted and applied, the advocate will need to adjust. Packaging and presenting the evidence and arguments most effectively, and preserving and perfecting a record for appellate review, will, to no small measure, depend on the advocate’s understanding of his or her audience.
As such, I think it is essential to consider certain issues. What do we mean by standard of proof? What types of standards are there? Who has the burden to meet these standards? Are there any differences in the standard and burden of proof between the common law and civil law systems? And how do you reconcile these issues within the hybrid context? Far too often, advocates (and judges and prosecutors) are using the same terms, though they may have different meanings depending on the legal tradition or national practice. Judges as fact-finders will have different functions and duties depending on their legal tradition. How evidence is understood and considered also varies. All of these differences and more pose a challenge to the advocate, whose sole responsibility is to present the client’s case in the most effective manner for the most positive (and practicable) result.
In this post I will merely introduce and define the various terms essential to the discussions to follow. In the next post, for contextual reasons and a better understanding of how these standards came about, I will present a modest historical treatment on how these standards of proof have emerged and evolved over the centuries. I will also touch on the principle of in dubio pro reo, a principle that is linked to the intimate conviction standard and is applicable before the international criminal tribunals. I will then briefly show that, to this day, there is no uniform definition of proof beyond a reasonable doubt, though this standard is invoked in national, regional, and international courts.
After setting the historical context, I will next address, in general, common law and civil law procedures and their respective approaches to standards and burdens of proof, i.e., proof beyond a reasonable doubt and intimate conviction. Finally, I will try to bring the discussion full circle by showing how the European Court of Human Rights and international criminal tribunals apply the standards and burdens of proof, and how to better appreciate the approaches taken by judges in interpreting the rules within the context of their own legal backgrounds and experiences.
Clarifying the meaning of standards and burden of proofs
Standard of proof: When we talk about standards of proof, we are referring to the degree or level of proof required in a specific case. The required degree or level of proof encompasses not only quantity but also quality. In other words, the evidence needs to be of sufficient quantity and quality to meet the requisite measure specified by the law, depending on the type of case or the purpose for which the evidence is being proffered. Thus, in a civil case, the standard of proof, at least in common law systems, tends to be lower than the standard of proof in criminal cases. Also, as we will see, the standard of proof will vary depending on who is responsible for proffering evidence that must meet the required level of proof in order to prevail – whether it is in raising a defense or in achieving a guilty verdict.
The term standard of proof is a term primarily – if not most accurately – used in common law systems or hybrid party-driven adversarial systems. This will be explained in more detail in the posts discussing the common law and civil law systems. The fact-finder is provided with a definition and / or description of the standard of proof. As we will see, the definitions and descriptions can vary. In civil law systems the standard of proof is viewed differently. There is no guiding definition or perceptible description per se; the fact-finder is to reach a decision based on a subjective belief, an intimate conviction. As such, one queries whether this imposition on the fact-finder to reach a decision based on a subjective inner feeling can be accurately characterized as a standard of proof as the term is understood in common law and hybrid systems. Perhaps it is merely a matter of semantics. Rather than quibble over terminological nuances, and since these posts are primarily for practitioners, the term standard of proof as I use it in this series of posts refers to the level of proof, i.e., the required amount of evidence proffered, which, when weighed and considered, rises to the level specified by law for a specific case or purpose. In brief, below are the different standards of proof. For the sake of simplicity, I have divided them into common law and civil law standards of proof.
– Proof beyond a reasonable doubt effectively means near certainty. Although there is no conclusive definition, generally, this standard of proof can be defined as proof of such a convincing nature that one would be willing to act and rely on it without hesitation in one’s important affairs.1See, e.g., Pattern Federal Jury Instructions of the Fifth Circuit, instruction 1.05: “A ‘reasonable doubt’ is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in making the most important decisions of your own affairs.” There is no set formula for explaining and defining this standard to the jury acting as fact-finder. Convictions have been quashed and overturned on the grounds of misdirection by trying to explain and define what is meant by reasonable doubt, judges have used or misused terms requiring further explanation and definition. As we will see, terms such as “moral certainty,” “abiding conviction,” and “not a mere possible or imaginary doubt” have caused more confusion than clarity.
– Clear and convincing evidence means that a party must persuade the fact-finder that the claim or defense is “highly probable.”2Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (defining the clear and convincing evidence standard as “an abiding conviction that the truth of [the] factual contentions is highly probable.”) This standard of proof is less rigorous than proof beyond a reasonable doubt, and is mostly applied in civil proceedings. In criminal cases, the standard of clear and convincing evidence is required in some US states for raising a specific defense, such as incompetence.3Mitchell v. State, 323 Ark. 116, 120, 913 S.W.2d 264, 266 (1996); Ariz. Rule Crim. Proc. 11.5 (1987 and Supp. 1995).
– Preponderance of evidence (also known as balance of probabilities) is satisfied when there is a greater than fifty percent chance that the proposition is true.4Miller v. Minister of Pensions  2 All ER 372. This standard is lower than clear and convincing evidence and is applied in some jurisdictions for raising a specific defense, such as self-defense.5Martin v. Ohio, 480 US 228 (1987); Woolmington v. DPP  AC 462.
– Scintilla of evidence is some evidence which falls far below preponderance of evidence. This standard is required of the accused when raising a specific defense in some common law systems. It is “more than a scintilla, yet, of course, the amount need not be so substantial as to require, if uncontroverted, a directed verdict of acquittal.”6See McDonald v. United States, 312 F.2d 847, 849 (D. C. Cir. 1962) (the US Court of Appeals District of Columbia Circuit gave this definition in relation to the accused’s claim of mental disability as a defense.)
– Intimate conviction as a standard of proof, i.e the degree to which the fact-finder must be persuaded, is difficult to define. An instruction from the President of the French cour d’assise7The French cour d’assise is a criminal trial court with original and appellate jurisdiction to hear criminal cases. See French Code of Criminal Procedure (“CCP”), Art. 231. (comprised of three judges and six jurors) to the jurors explaining the concept of intimate conviction is illustrative:
The law does not ask the judges to account for the means by which they convinced themselves; it does not charge them with any rule from which they shall specifically derive the fullness and adequacy of evidence. It requires them to question themselves in silence and reflection and to seek in the sincerity of their conscience what impression has been made on their reason by the evidence brought against the accused and the arguments of his defence. The law asks them but this single question, which encloses the full scope of their duties: are you inwardly convinced?8French CCP, Art. 353.
Burden of proof: When we talk about the burden of proof, also characterized as the risk of non-persuasion,9John Wigmore, A Treatise on the System of Evidence in trials at Common Law, § 2494 (Toronto: Canada Law Book 1905). the legal or persuasive burden,10Richard May and Colin Tapper prefer the expression persuasive burden. See Richard May, Criminal Evidence mn. 4-02 (4th ed., Sweet & Maxwell 1999); Colin Tapper, Cross & Tapper on Evidence (8th ed., Butterworth 1995). or the ultimate burden,11Roderick Bagshaw, Peter Crane et al. (eds.), Phipson on Evidence, (15th ed. Sweet & Maxwell 2000). we are referring to a party’s obligation to prove an assertion or charge. The principle is relatively simple: who carries the burden of presenting the requisite level (quantity and quality) of evidence prescribed by law? When it comes to the ultimate issue of guilt, in common law systems the prosecution bears the burden. This does not mean, however, that the defense never carries a burden of proof during some stages of the proceedings or in alleging certain defenses or justifications. For all intents and purposes, the burden of proof can also be referred to as the burden of persuasion – in other words, the duty to convince the fact-finder that an assertion or charge has been proved. When discussing civil law systems, I will draw distinctions between the burden of proof as applied in civil law systems and in common law systems. Effectively, in civil law systems the judges as the fact-finders bear the burden of being persuaded to their subjective beliefs / inner convictions that the evidence, when weighed and after giving the benefit of doubt to the accused, warrants a finding of guilt for some or all charges.
Burden of production / going forward: When we talk about the burden of production, also characterized as the burden of going forward or evidential burden,12Colin Tapper, Cross & Tapper on Evidence (8th ed., Butterworth 1995); Roderick Bagshaw, Peter Crane et al. (eds.), Phipson on Evidence, (15th ed. Sweet & Maxwell 2000). we are referring to the order of presentation of evidence prescribed by law, generally when the defense opts to raise a defense or claim an alibi. In other words, who is required to present the required level of evidence in order for the fact-finder to decide on the defense or claim of alibi? The burden of production can also be referred to as the duty of passing the judge, since it is the trier-of-law (judge) who decides whether a party has met its burden of production for the issue to go before the fact-finder (jury).13Roderick Bagshaw, Peter Crane et al. (eds.), Phipson on Evidence, mn. 4-02 (Sweet & Maxwell 2000).
In the next post I will briefly discuss historical aspects of the standards of proof and the in dubio pro reo principle. My aim will be to provide some context and a background understanding of how the common law and civil law standards of proof diverged and evolved over the centuries.
Posts in this series:
|↑1||See, e.g., Pattern Federal Jury Instructions of the Fifth Circuit, instruction 1.05: “A ‘reasonable doubt’ is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in making the most important decisions of your own affairs.”|
|↑2||Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (defining the clear and convincing evidence standard as “an abiding conviction that the truth of [the] factual contentions is highly probable.”)|
|↑3||Mitchell v. State, 323 Ark. 116, 120, 913 S.W.2d 264, 266 (1996); Ariz. Rule Crim. Proc. 11.5 (1987 and Supp. 1995).|
|↑4||Miller v. Minister of Pensions  2 All ER 372.|
|↑5||Martin v. Ohio, 480 US 228 (1987); Woolmington v. DPP  AC 462.|
|↑6||See McDonald v. United States, 312 F.2d 847, 849 (D. C. Cir. 1962) (the US Court of Appeals District of Columbia Circuit gave this definition in relation to the accused’s claim of mental disability as a defense.)|
|↑7||The French cour d’assise is a criminal trial court with original and appellate jurisdiction to hear criminal cases. See French Code of Criminal Procedure (“CCP”), Art. 231.|
|↑8||French CCP, Art. 353.|
|↑9||John Wigmore, A Treatise on the System of Evidence in trials at Common Law, § 2494 (Toronto: Canada Law Book 1905).|
|↑10||Richard May and Colin Tapper prefer the expression persuasive burden. See Richard May, Criminal Evidence mn. 4-02 (4th ed., Sweet & Maxwell 1999); Colin Tapper, Cross & Tapper on Evidence (8th ed., Butterworth 1995).|
|↑11||Roderick Bagshaw, Peter Crane et al. (eds.), Phipson on Evidence, (15th ed. Sweet & Maxwell 2000).|
|↑12||Colin Tapper, Cross & Tapper on Evidence (8th ed., Butterworth 1995); Roderick Bagshaw, Peter Crane et al. (eds.), Phipson on Evidence, (15th ed. Sweet & Maxwell 2000).|
|↑13||Roderick Bagshaw, Peter Crane et al. (eds.), Phipson on Evidence, mn. 4-02 (Sweet & Maxwell 2000).|