Abstract
During the course of legal proceedings, evidentiary material is analyzed and evaluated in order to make a final judgement whether the responsible party has discharged the onus of proof. The existence of a standard of proof against which the presiding officer can measure the evidence submitted consequently plays a pivotal role. This standard of proof (bewysmaatstaf) represents the standard of guilt in legal science and has also been described as a standard of conviction. The standard of proof does not pertain to the inherent qualities of evidentiary material, but rather to the degrees of conviction of the presiding officer in a particular case. The function of thestandard of proof is furthermore to provide presiding officers with a guideline/yardstick to measure the degree of conviction that the general public believe the presiding officer should have over the correctness of all the factual conclusions in the particular proceedings. In this article, the standard of proof in law will be discussed from a comparative point of view; different standards of proof from different jurisdictions will be considered and juxtaposed against similar standards used in the natural sciences.
Highlights
During the course of legal proceedings, evidentiary material is analyzed and evaluated in order to make a final judgement whether the responsible party has discharged the onus of proof
The standard of proof in law will be discussed from a comparative point of view; different standards of proof from different jurisdictions will be considered and juxtaposed against similar standards used in the natural sciences
While quantified definitions of the standards of proof may be more effective when giving jury instructions or explaining legal terms to people with no legal education, the standards of proof and the process of analysis and assessment of probative material cannot be simplified to a mere mathematical calculation
Summary
During the course of legal proceedings, evidentiary material is analyzed and evaluated in order to make a final judgement whether the responsible party has discharged the onus of proof. (Prima facie proof or a prima facie case implies that proof to the contrary is still possible, but in absence of such proof to the contrary, the prima facie proof will be regarded as conclusive proof.) Once a prima facie case is established, the evidentiary burden will shift to the opposing party (Schwikkard and Van der Merwe 550-560) In this process of analyzing and assessing the weight of probative material and making a decision whether a party has discharged the burden of proof, a standard is required against which the presiding officer can gauge or measure the case presented. It will be argued in this article that mathematical calculations and probability theories cannot form the foundation of the legal reasoning process, as legal reasoning is a distinctive cognitive process whereby probative material is analyzed and assessed; a cognitive process that generates a level of confidence against which the factfinder can apply the relevant standard of proof (Clermont “Standards of Proof Revisited” 2009 33 Vermont LR 469-487 470)
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