Proving Causation: Probability Versus Belief (original) (raw)
2014, Hart Publishing eBooks
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Proving Facts: Belief versus Probability
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Although it comes as a great surprise to most American lawyers and legal scholars, it is commonly assumed by those familiar with civil (non-criminal) trial procedures in both common law and civil law jurisdictions that there is a radical difference between the standards of proof in the two types of jurisdictions. 1 Yet, despite the assumed difference and the great practical as well as theoretical significance of the topic, not much is said about the burden of proof in monographs on comparative tort law, and what little is said tends to focus on the allocation of the burden rather than on its content. 2 The general rule in both types of jurisdictions is that the plaintiff bears the burden of proving the prima facie case against the defendant (the defendant's tortious causation of the harm allegedly suffered by the plaintiff), while the defendant bears the burden of proving any affirmative defenses. 3 However, the burden is sometimes shifted to the defendant on one or more elements of the prima facie case. This occurs much more often in civil law jurisdictions, through presumptions or explicit reversals of the burden of proof, than in common law jurisdictions.
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