How did balance of probabilities come to be called preponderance of the evidence in the US? The civil standard of proof is rather than &quot;beyond a reasonable doubt&quot; (what criminal standards of proof are called in both England and the US), either the balance of probabilities or a preponderance of the evidence depending if you are in the UK or US. When and how did American lawyers come to call this concept which appears to be semantically identical something different?
This article may be helpful. The development of a distinct, lower standard of proof for civil cases comes after the US came into existence, thus the expressions were developed independently, after the doctrine itself started to develop. Various expressions are used, often with different implications that could lead to fixing a specific expression to a definite doctrine, for instance &quot;greater weight of the evidence&quot;, &quot;more likely than not&quot; as well as the contender expressions. Earliest expressions of the principle in question include Edward Wynne Eunomus (1768) Wherever a verdict is given, the Plaintiff at least must give evidence to maintain his Declaration: where evidence is produced on both sides, the verdict is given for the Plaintiff or Defendant, according to the superior weight of evidence. Richards Wooddeson's 1777 formulation is In causes concerning civil rights and property, that side must prevail, in favor of which probability preponderates: but the (a) humanity of our law never esteems the turn of the balance sufficient to convict a man of any, especially a capital, crime. For it requires a very strong and irrefragable presumption of guilt to justify the infliction of the severer human punishments In Delaware (1801) in the case State v. Crocker, 2 Del. Cas. 150, the doctrine is &quot;named&quot;, preponderance of evidence: In civil cases a preponderance of evidence is sufficient for you to convict; in criminal, you should have proof You can find &quot;balance of probabilities&quot; in a UK case Head v. Head (1823). The origin of the construction &quot;balance of probabilities&quot; is philosophy and theology, whereas &quot;preponderance of evidence&quot; is a more-distinctly legal expression. Since the underlying ideas were developed separately in the US and England, it is not surprising that different expressions were attached to the doctrine.
The burden of proof is always on the plaintiff (except for counterclaims brought by the defendant against the plaintiff). In your example, the businessman has to prove that he did not rape her.
Some jurisdictions codify maxims, many do not, but these maxims still exist. Nullus commodum capere potest de injuria sua propria (no one can take advantage of his own wrong) is a generally recognized principle of equity, broadly connected to the principle &quot;who comes into equity must come with clean hands&quot; and the covenant of good faith. Some civil law countries (e.g. France) recognizes Nemo auditur propriam turpitudinem allegans (no one can be heard to invoke his own turpitude).
As I understand it, legal procedure in Common Law jurisdictions (e.g. the UK) is primarily based on evidence given by a person. Paperwork exists to verify that someone has not misremembered something, but even when you have paperwork you need to have someone testify that this is the right paperwork and it hasn't been forged. A piece of paper on its own means nothing. In practice of course the two sides will agree to accept routine matters rather than dragging lots of third parties (e.g. the post office employees) into court to no point. In the case of a letter where you need to prove it was received, the sender will testify that they sent the letter and that the copy they have introduced into evidence is a true copy. The proof of delivery merely shows that the item wasn't lost in the post. If one party testifies that they sent a letter and the other testifies that they merely received an empty envelope then someone is lying, which is a crime meriting further investigation.
A legal paper published in a peer reviewed journal is not science. Universities have faculties of Law and Science because they are not the same thing. while both disciplines use the terms ‘evidence’, ‘fact’ and ‘proof’ they do not mean the same thing. Notwithstanding, the law has already disproved science - see the Catholic Church v Galileo and the Heliocentric model of the Solar System. Yet NASA still uses it to send spacecraft to Pluto - possibly because engineering is neither science nor law.
The concept of &quot;innocent until proven guilty&quot; is inherent in our constitutional protections for due process. As far as I know, the Supreme Court first formally recognized it as a rule in Coffin v. United States, 156 U.S. 432, 458-59 (1895): Now the presumption of innocence is a conclusion drawn by the law in favor of the citizen, by virtue whereof, when brought to trial upon a criminal charge, he must be acquitted, unless he is proven to be guilty. In other words, this presumption is an instrument of proof created by the law in favor of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created. The key phrase -- for purposes of your question -- is &quot;sufficient evidence.&quot; At a criminal trial, sufficient evidence consists of proof beyond a reasonable doubt on “all the essential elements of guilt” In re Winship, 397 U.S. 358, 361 (1970). But if the government wants to lock up a defendant pending trial, the question is not whether the defendant is guilty of the charged crime, but rather whether he poses a danger to the community and can be trusted to appear for trial. 18 U.S. Code § 3142(e)(1). And on those questions, he retains the presumption of innocence, but the government's burden of proof when arguing otherwise is substantially lower. The courts recognize both the potential of fleeing from the court and the prevention of additional crimes as legitimate bases for pretrial detention. In cases like Avenatti's, where the government is seeking pretrial detention because the defendant is a danger to the community, it needs to prove by clear and convincing evidence &quot;that no condition or combination of conditions will reasonably assure the safety of any other person and the community.&quot; 18 U.S. Code § 3142(f)(2). However, if the government is seeking to hold the defendant because it does not believe he will appear for trial, it need only prove its case on that question by a preponderance of the evidence. United States v. Martir, 782 F.2d 1141, 1146 (2d Cir. 1986) (“For detention to be proper, the government had to prove by a preponderance of the evidence that no conditions of release would reasonably assure Martir's attendance at trial.”). As a side note, I'd agree with some of the answers that in practice, the bond system is regularly abused to the point that its underlying principles become unrecognizable. My answer is meant only to address the actual legal rules your question implicates.
It is the lower courts' interpretation of a senior court's judgment&mdash;specifically the ratio&mdash;that determines what is the precedent. If a court doesn't want its opinion to bind lower courts, it can be clear in its judgment that this is not what was intended. For example, a court could say that this judgment turns on the particular facts of this case, and should be interpreted narrowly by lower courts. Alternatively, a previous precedent could be narrowed by a later judgment of a senior court if it was later felt that the ratio was being applied too widely. (I have read examples of the explicitly narrow ratio, but haven't been able to find any today)
You appear to be conflating two different legal concepts: evidence and proof. evidence something that furnishes proof: testimony; specifically: something legally submitted to a tribunal to ascertain the truth of a matter proof the cogency of evidence that compels acceptance by the mind of a truth or a fact So evidence is presented to a tribunal who will then decide if that evidence meets the required burden of proof. In a civil matter the burden of proof is met on the preponderance of evidence (in a criminal matter the burden is beyond reasonable doubt) and the onus of proof rests with the person making the allegation. Preponderance is based on the more convincing evidence and its probable truth or accuracy, and not on the amount of evidence. Thus, one clearly knowledgeable witness may provide a preponderance of evidence over a dozen witnesses with hazy testimony, or a signed agreement with definite terms may outweigh opinions or speculation about what the parties intended. Certified mail is evidence (very strong evidence) that something was mailed and delivered. It is, as you rightly point out not evidence of what it contained. So let's follow through with your IRS hypothetical: No Certified Mail The IRS alledges that you did not file your tax return - they have the burden of proof. As evidence, they put forward an affidavit that no return was filed. You put forward an affidavit that you did file a return. The judge considers the evidence and (probably) gives more veracity to the IRS's affidavit than yours - the IRS have met their burden of proof. Certified Mail 1 The IRS alledges that you did not file your tax return - they have the burden of proof. As evidence, they put forward an affidavit that no return was filed. You put forward an affidavit that you did file a return and the proof of delivery from the USPS. The judge considers the evidence and (probably) considers that the IRS has recieved something from you: if it wasn't a tax return then they were in a position to give evidence as to what it was, and they didn't - given that it is the IRS that is obliged to prove that what they receieved wasn't a tax return, the IRS have not met their burden of proof. Certified Mail 2 The IRS alledges that you did not file your tax return - they have the burden of proof. As evidence, they put forward an affidavit that no return was filed but they did recieve an envelope stuffed with newspaper clippings and here they are. You put forward an affidavit that you did file a return and the proof of delivery from the USPS and you have no idea how they changed from a tax return to newspaper clippings in transit. The judge considers the evidence and (probably) gives more veracity to the IRS's affidavit than yours - the IRS have met their burden of proof.