I apologize for any duplicate postings.
As some of you may be aware from my prior publications, I believe that, contrary to a common assumption by academics in the common law (but not civil law) world, the standard of persuasion should be and generally is a minimal belief standard based on evidence specific to the particular case rather than a mere 50+% class-based statistical probability standard. The "balance of probability" standard in Commonwealth (and Scandinavian) jurisdictions literally seems contrary to this (despite such interpretation being contradicted by the UKSC's Sinkewiecz decision). The "preponderance of the evidence" standard in the US is generally similarly interpreted doctrinally (but inconsistently applied practically). What I am interested in is the historical development of the standards of persuasion in common law countries (and any comparative information from civil law countries). When, how, and in what situations did these standards, especially the "balance of probability" standard and the 50+% class-based statistical probability interpretation of the "preponderance of the evidence" standard, appear and develop, and what has been their intended or understood meaning over time, doctrinally and practically in the cases? I think it might be especially useful to look at this through the lens of the res ipsa loquitur doctrine, which originally required that the injury "would not" or "could not" have happened in the absence of negligent conduct but now is generally stated as "ordinarily would not have happened" in the absence of such conduct, and is generally interpreted, at least in the doctrine (but not in actual practice?) as merely requiring a 50+ percent statistical probability, following a similar trend in the doctrinal/judicial elaboration of the burden of persuasion in civil cases. I believe that a way-station in this doctrinal progression was a shift in res ipsa loquitur doctrine from "would not have happened" to "in the ordinary course of events would not have happened" to "ordinarily would not have happened." I would be extremely grateful for any referenes to treatises, articles, and cases that would be helpful in tracking the historical development of these concepts and standards.
Thanks,
Richard W. Wright
University Distinguished Professor and Professor of Law
Illinois Institute of Technology Chicago-Kent College of Law