The civil standard of proof—what is it,actually?

Abstract

Unlike common law, Continental European civil law does not strictly distinguish between the standards of proof applicable in civil and criminal matters, respectively. In civil law countries such as Germany and Switzerland, judges are supposed to use the same (high) standard of ‘full conviction’ in both criminal and civil cases. This study is the first to look at the standard of proof actually used by judges and judicial clerks in a civil law country (Switzerland). It is shown that the standard actually used differs from the one normatively prescribed. No difference between the estimated decision threshold for members of the courts and members of the general population is found. The results suggest that the standard of proof actually employed by judges of a civil law system is not much different from the common law’s ‘preponderance of the evidence’ standard, despite the doctrinal insistence to the contrary.