Essays on Standard of Proof: The Determinations and Implications
Open AccessStandard of proof governs the result of most trials in our legal system, so it is not only important in jurisprudence but also influential for the economy and society. This dissertation studies how the standard of proof should be determined under different scenarios. Most previous studies on standard of proof only focus on the trial phase, but the essays in this dissertation make various extensions to this setting.In the first essay, the standard of proof is studied together with different evidence presentation rules. Specifically, under the Common Law Tradition, the litigants lead the evidence presentation process: the litigants raise arguments and present evidence with great discretion, and the judge or jury stays passive through the trial. In contrast, under the Civil Law Tradition, the judge leads the evidence presentation process: she asks the litigants specific questions regarding the case; the litigants can only answer the questions from the judge and provide relevant evidence as the judge orders. The analysis shows that, with sufficient investigation resources and appropriate standard of proof, the evidence presentation rule under the Civil Law Tradition may result in less adjudication errors. However, the evidence presentation rule under the Common Law Tradition together with the preponderance of the evidence standard deter more frivolous lawsuits and encourage more settlements, hence saving more litigation resources for society. The second essay takes the individuals’ ex ante behavior into consideration and studies whether the standard of proof should be promulgated as an ex ante bright-line-rule or as an ex post flexible standard. The analysis shows that, when the legislature has complete and accurate information about the associated legal issue, promulgating the standard of proof as an ex ante rule results in higher social welfare; however, its advantage over the preponderance of the evidence standard, which is the optimal ex post standard of proof, is minimal, as the preponderance of the evidence standard is a good approximation of the optimal ex ante rule. If the legislature’s ex ante information is incomplete or inaccurate, the preponderance of the evidence standard, which needs much less information to be correctly determined, is very likely to outperform the ex ante rule. In addition, the preponderance of the evidence standard has a uniform function form which makes it much easier to promulgate and apply. Therefore, the preponderance of the evidence standard is a desirable standard of proof in judicial practice, even though it is not optimal in theory.The third essay studies how the standard of proof and sanction should be determined in corruption cases if the anti-corruption agencies’ strategic behaviors are taken into consideration. The analysis shows that, when the anti-corruption agency is not sufficiently overseen, he will on purpose indulge corruption because higher corruption means not only more chances of promotion but also more benefit from blackmailing and collusion. As a result, the deterrence generated by low standard of proof (zero-tolerance) and grievous sanction will be nullified by the agencies’ poor enforcement.
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