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The previous chapter introduced some basic concepts related to the process of fact-finding and briefly outlined how those concepts are applied in international dispute settlement proceedings, including WTO dispute settlement. This chapter examines in more detail how panels and the Appellate Body manage the concept of the burden of proof and determine when the burden of proof has been discharged. In other words, the main issue discussed regards the functioning of the burden of proof in WTO dispute settlement. The chapter also discusses the related question of the degree of persuasion that panels must reach in order to determine that the burden of proof has been discharged: that is, it addresses the question of the standard of proof.

This chapter discusses the meaning of basic concepts such as the burden of proof, standard of proof, and presumptions. It explains how those concepts are defined in the common law system, the civil law system, and in international law. It argues that because those concepts do not have exactly the same meaning in all legal systems, WTO panels and the Appellate Body should clearly define those concepts in the context of WTO law, taking into consideration the basic structure of the WTO dispute settlement system.

Legal practitioners are aware that the possibility of success in a lawsuit is often highly dependent upon the procedural requirements resulting from the applicable evidentiary rules pertaining to burdens of proof and presumptions. This is just as true for claims regarding the existence of common law marriages. At the same time, these rules and their underlying intentions reflect the attitudes of both the courts and legislatures toward the legal concept of common law marriage. This chapter examines the evidentiary rules pertaining to burdens of proof and presumptions, their purposes, and their application by the courts. Of particular interest is the marriage presumption; its origin and underlying values; the elements that must be proved to invoke its application, and its legal effects and relationship to the substantive law and fundamental evidentiary rules with respect to the burden of proof and the standard of persuasion.

This chapter examines whether commonalities exist in the rules of evidence applied by different international courts and tribunals. It begins by considering the sources of rules of evidence in international law. These are the constitutive instruments of international courts, rules of procedure, general principles of law, and inherent powers. It then selects a number of evidential issues, being the admission of evidence, the burden of proof, and the standard of proof, and reviews whether international courts adopt similar approaches. The chapter then turns to an examination of the evidence-gathering powers of international courts, such as taking judicial notice of facts, ordering the production of evidence, making site visits, and ordering expert reports. The practice of international courts generally indicates a common approach to these issues, although the application of the rules is not completely consistent.

This chapter explores some contexts in which the law self-consciously applies at least some of the framework for proof of facts to the initial proof of law. The most illuminating context is the proof of foreign law, which until roughly the mid-1960s generally followed the strict procedures for proof of facts, which shows that it is at least possible to think about proving law using the same conceptual structure that one uses for thinking about proving facts. Other contexts in which proof of law plays a prominent role include clear-statement rules, in which courts require certain parties to meet various thresholds of proof, and the law of official immunity, in which government officials can be held liable only for violating “clearly established law.”

This chapter explores the thesis that the use of the standard of proof beyond a reasonable doubt for trying those accused of violent crimes — especially if such defendants already have a history of serial offending — is an inappropriately exacting standard. The reason, in brief, is that such a standard fails to reckon with the very high costs and risks imposed on innocent citizens by the non‐conviction and release of falsely acquitted, serial felons. It argues further that those who hold that political morality demands that no defendant should ever be judged by a standard less rigorous than proof beyond reasonable doubt fail to grasp that the function of a standard of proof is to embody our best guesses about the respective costs of error. It goes on to show that familiar deontological theories utterly lack the conceptual resources for non‐arbitrarily defining any standard of proof, since such theories fail to comes to terms with the problems posed by factoring the risks of error into decisions about which actions are justified and which are not.

Chapter 13 looks at the concept of margin of appreciation through the lens of standard of proof. Based on a close reading of ECtHR case law, the chapter concludes that the concepts of standard of review and standard of proof are closely connected as the degree of discretion (which is determined by the margin of appreciation doctrine) also relates to the extent to which the allegations have to be proven by the State in order to be accepted by the reviewing Court (this aspect is determined by standard of proof). Against this background, it explores the standards of proof applied by the ECtHR as well as the factors influencing their determination. Taking into account Franck’s theory of procedural fairness, it argues that that the Court’s assignment or application of the standards of proof largely fails to meet the relevant criteria, and are opaque and incoherent.

This chapter describes the formal structure of proof for facts in the law as involving principles of admissibility (what counts toward establishing a claim), principles of weight or significance (how much the admissible evidence counts toward establishing a claim), standards of proof (how much total admissible evidence one must have in order to establish a claim), burdens of proof (how one makes decisions in the face of uncertainty), and principles of closure (when one can stop looking for more information and declare the evidence set closed). It suggests that this formal structure for proof of facts – not the particular determinations that American law has chosen to make but the formal structure itself -- is a special case of a broader truth about the nature of proof. That is, the questions that the law asks in connection with proof of claims that are conventionally classified as factual are questions that must be asked with respect to proof of any claim in any discipline. The chapter also demonstrates that any distinction that is drawn between propositions of fact and propositions of law is purely conventional and is ungrounded in anything metaphysically or epistemologically significant.

This chapter shows how applying principles of proof to legal propositions clarifies the nature of legal indeterminacy. Legal though often assumes that interpretative uncertainty resulting from application of a theory leads to indeterminacy in the theory’s ability to resolve disputes. That is not necessarily true. The extent to which any theory generates indeterminacy depends both upon the degree of uncertainty that it generates and on how the theory allocates burdens of proof. A theory with a lot of uncertainty can nonetheless be highly determinate if it specifies how the risk of uncertainty should be borne among the contending parties. Indeed, a legal system can be entirely determinate – can prescribe a unique outcome for every instance of adjudication – even if the legal norms are significantly uncertain. Using burdens of proof to resolve legal uncertainty has consequences. Doctrines as seemingly diverse as the rule of lenity in statutory interpretation and the non-delegation doctrine in federal constitutional law all turn out to be special cases of very basic observations about legal proof.

This chapter explores the considerations that enter into the selection of standards of proof for legal claims. It lays out the considerations that have led the American legal system to embrace a standard of proof beyond a reasonable doubt for facts in criminal cases, a standard of proof by a preponderance of the evidence for (most) facts in (most) civil cases, and an implicit standard of proof of “better-than-available-alternatives” for (most) legal claims in both criminal and civil cases. It suggests that the reasons thus far given for distinguishing civil from criminal cases, and for distinguishing factual from legal claims, are not necessarily persuasive, and it offers a very tepid justification for applying a somewhat higher standard of proof for legal claims than is consistent with existing practice.

This chapter explores, in some concrete settings, how applying principles of proof to legal questions illuminates debates in interpretative theory, using examples drawn both from legal scholarship and from case law. The point is not to support, or even advance, any particular theory of constitutional or statutory interpretation but simply to provide a roadmap for clearer discussion about issues concerning interpretation and proof. If one person is, perhaps without realizing it, talking about principles of admissibility and the other is, perhaps without realizing it, talking about standards of proof, they are likely to talk past each other. Moreover, within the realm of admissibility, the law of evidence in connection with proof of facts often sacrifices the search for truth in favor of other values. There is nothing necessarily wrong with doing so as long as one recognizes it and can defend the resulting trade-off. Various theories of legal interpretation also have implicit admissibility rules that sometimes sacrifice interpretative truth – as defined by those theories’ own lights -- for other values. Those trade-offs need to be acknowledged and defended.

The presentation of expert forensic science evidence in rigorous statistical terms raises the question of how lay fact-finders (judges and jurors) might employ such evidence to prove events in issue. Can this simply be left to the common sense of fact-finders or should the law provide further guidance about how they should reason in applying the criminal standard of proof? Should courts demand that witnesses who give statistical evidence express that evidence in a particular form? This article examines the non-mathematical nature of common law fact-finding and its embodiment in the presumption of innocence principle underlying the criminal standard of proof. It argues that forensic scientists present evidence in a form that makes transparent the risks of error so that, in determining satisfaction of the accused’s guilt having regard to all the evidence before it, the fact-finder considers the reasonable possibility of doubts necessarily left open by statistical evidence.

This chapter applies probabilistic knowledge to problems in legal and moral philosophy. It is argued that legal standards of proof require factfinders to know probabilistic contents. For instance, proof by a preponderance of the evidence requires knowledge that the defendant is at least .5 likely to be liable, whereas proof of guilt beyond a reasonable doubt requires knowledge of a significantly stronger content. The fact that legal proof requires knowledge explains why merely statistical evidence is insufficient to license a legal verdict of liability or guilt. In addition to explaining the limited value of statistical evidence, probabilistic knowledge is useful in spelling out norms violated by acts of racial and other profiling. It can be epistemically wrong to infer from statistics that a woman is probably an administrative assistant, for instance, even when inferring facts about ordinary objects from similar statistics is perfectly okay.

Discusses two cases: Chief Constable of West Yorkshire Police v A [2005] 1 AC 51, in which the House of Lords recognised that a transgender individual must be treated as belonging to her new gender, even without a Gender Recognition Certificate, if for particular purposes; and Re U (A Child) (Standard of Proof) [2004] 3 WLR 753 which illustrated that the same factual basis for legal action following harm caused to a child might fail to satisfy the criminal standard of proof but at the same time satisfy the civil standard of proof in child protection proceedings.

The proof structure of criminal trials consists of the presumption of innocence, which is to be accorded to the accused, the burden of proof, which is on the government, and the standard of proof, which is typically “beyond a reasonable doubt.” This proof structure is usually justified in terms of error distribution: We strongly prefer to have trials yield errors of mistaken acquittal to errors of mistaken conviction. This chapter develops an alternative justification, a “moral assurance” approach. According to it, we make trials rigorous tests of the government’s accusations in order to assure ourselves that, when we convict and punish people for crimes, we do so justifiably. The consequences of legal punishment are such that individuals have a second-order moral right to demand that the government’s case against them survives a stern test. This account is contrasted with the error distribution approach and defended against numerous objections.

In some instances, state officials offer defendants substantial waiver rewards because they recognize that the evidence which they have is short of conclusive. It is thought better to secure some punishment of defendants than to risk trials at which they might be acquitted. This “half-loaf” defense of plea bargaining is the subject of Chapter 8. It is argued that principled prosecutors and judges would not seek to bypass fair procedures designed to protect the innocent. Principled state officials will thus eschew half-loaf plea bargaining. They will offer modest waiver rewards, proceed to trial if defendants refuse such offers, or drop charges for which there is insufficient evidence. The hard cases will be those in which state officials have inadmissible evidence which they are certain confirms the guilt of individuals with respect to serious crimes. These cases are examined at length.

Existing works on inter-state cyber operations have focused so far on whether such operations are consistent with primary norms of international law and on the remedies available to the victim state under the jus ad bellum and the law of state responsibility. They have almost entirely neglected a discussion of the evidence the victim state needs to produce to demonstrate that an unlawful cyber operation has been conducted against it and that it is attributable to another state. Taking the International Court of Justice’s case-law into account, the chapter discusses who has the burden of proof in relation to claims seeking remedies for damage caused by cyber operations, the standard of proof required in the cyber context, and, finally, the possible methods of proof, distinguishing between those which are admissible and those which are inadmissible.

Chapter 14 analyses the role that is played by expertise in the recent (2008–2012) hate speech cases decided by the ECtHR. The chapter argues that the Court has worked on the basis of three, not necessarily compatible, models when dealing with hate speech cases: (a) a low standard of proof model, relying on an implicit role of experts; (b) a higher standard of proof model, leaving room for an explicit accent on expertise; and (c) an instrumental model with an over-reliance on expertise, resulting in a non-intrusive standard. As a result, the case law on hate speech fails to offer clear guidance on how the Court should review expert opinions, in part because, as the chapter argues, the Court has so far not been willing to clarify the criteria for expert evidence.