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Published: Fri, 02 Feb 2018
Criminal or civil standard of proof
The standard of proof, in essence, can be loosely defined as the quantum of evidence that must be presented before a Court before a fact can be said to exist or not exist. As the type of cases before a Court can be classified into criminal or civil, so can the standard of proof. There is a clear understanding that the Courts follow according to wich the standard of proof to be followed in a criminal case is that of ‘beyond reasonable doubt’ whereas the standard of proof changes, even lowers to the ‘balance of probabilities’ in cases of civil proceedings. It is also widely understood that the standard is higher in criminal cases. This does not mean that the actual quantity of evidence adduced should be more but speaks more of the nature of evidence. Even though such a bifurcation exists, a problem might crop up in the form of criminal charges within a civil case. This is one of the most important questions that the researcher has tried to analyse in this paper. The researcher has analysed the meaning and scope of the two standards, the position in India and finally, the question of a third standard.
Reasonable Doubt v. Balance of Probability
In common law, two separate standards of proof are recognized- proof beyond reasonable doubt and proof based on the balance of probabilities. The former is he standard adopted while dealing with criminal cases while the latter is the standard in use in case of civil suits.  Different standards of proof are constructed seemingly to, among other things, minimize the high social costs that may arise on account of errors.  In actuality, these two terms are rarely used, especially in jurisdictions where juries are involved, as the two terms seem to be rather esoteric in nature and not immediately comprehensible. 
The standard used in criminal trial that is proof beyond reasonable doubt is viewed as requiring a high degree of satisfaction that the prosecution must, through the evidence and materials it presents, create in the mind of the Judge or the jurors. This high degree often leads to acquittal sometimes even when the authority trying the case feels that the guilt of the accused, based on the evidence, is more probable than his innocence. Even so, if the slightest doubt as to the guilt of the accused is created in the mind of the Court, he is given the benefit of the doubt and his innocence proclaimed. The basis of this is the general belief that the conviction of an innocent man as opposed to the acquittal of a guilty one is a fate more heinous, which is why such an allowance is made in the first place. Also, in most cases the accused might not have at his disposal the kind of facilities that the prosecution can use to establish their version of events. This could also be one of the reasons behind the leniency awarded to the accused as regards the standard of proof to be upheld by the prosecution. The nature of penalty in case of criminal cases is also often harsher in nature, which is why the same standard is not adopted in case of civil suits.
Even though the concept, as well as the term, ‘reasonable doubt’ was greatly acknowledged by the House of Lords in Woolmington v. D.P.P  , later decisions have shown that the Court, especially with respect to jury direction, does not consider it an obligation to use the term while explaining the level of proof required. It is often emphasized that the degree of persuasion, even in criminal cases, be determined depending on the unique characteristics of the case at hand. As a result, the generalized use of the term is not considered indispensable for a valid trial.  In common law cases, while explaining the standard of proof needed in criminal cases, even while avoiding the phrase ‘beyond reasonable doubt’, the Courts have explained to the jury that the doubt they were expecting should be the kind which might arise when the jury are themselves dealing with ‘matters of importance ‘ in their own affairs.  This is important because if the Courts were to be less specific and characterize the doubt to be the kind that would come up in everyday affairs, the envisaged high standard of proof would be suitably lowered. This is of significance because even though absolute certainty is not expected, the deciding authority is supposed to come as close to it as practically possible.  In the United States of America, arguments were made against defining ‘beyond reasonable doubt’ while directing the juries as this was believed to have reduced the level of satisfaction required in the minds of the jurors and thereby increasing the chances of conviction. The Courts held that as long as the terms used in the definitions were in line with the case as a whole, there was no error committed. The same view has been held valid in common law countries as well. 
A lower standard, that of balance (or preponderance) of probability is applied in civil litigation. Even though the standard of proof is lower in civil cases, it is no reflection on the seriousness of the allegations in question. The rationale behind the use of such a standard is that in some cases the question of the probability or the improbability of a happening is an imperative consideration to be taken into account in deciding whether that event has actually taken place or not.  In other words, even when a very serious allegation has been made in a civil case, the standard of proof is not considered to be automatically raised to come closer to the criminal standard.  However, there are certain cases which are primarily civil in nature but require, in the view of the Court, a standard of proof applicable in criminal proceedings.  The exceptions to the aforementioned general rule in civil cases include civil contempt of Court and. applications for orders relating to sex offenders or those exhibiting anti-social behaviour.  In other cases where there are criminal allegations as part of civil cases, the standard in use is the balance of probability. The reason behind this was explained in Hornal v. Neuberger Products Ltd.  , where it was held that within the scope of balance of probabilities, there might be varying degrees therein. It is thus suggested that there are innumerable degrees present that fluctuate on a case to case basis. 
Since varying degrees within the same standard of proof threatened to cause irregularity or absurdity, suggestions were made to create a third standard of probability, which were shot down in common law jurisdictions, reaffirming that only two standards of proof would be operational in these jurisdictions. Contrastingly, the United States of America has in fact created this third standard, present somewhere in between reasonable doubt and balance of probability. This midway standard is characterized by the terms ‘clear and convincing’ evidence and is used as the measure of persuasion essential in the type of cases which involve allegations of criminal or quasi-criminal actions within (what is at its crux) a civil case. The reasons behind the construction of such an intermediary standard is to make the trying of such cases easy as are concerned with important rights of an individual in civil cases.  In spite of it being considered a third standard, ‘reasonable doubt’ has been shown to coexist with ‘clear and convincing’ evidence, leading to the assertion that the distinction between the two remains obscured. 
Section 3 of the Indian Evidence Act, 1872
Following the general external tests in use to determine the standard of proof, the Indian Evidence Act accepted the conditions of a prudent man as being the apt standard by which proof can be measured.  Having said that, it is crucial to note that even though the condition of a prudent man is accepted, the Court also makes allowance to probable or improbable circumstances and conditions so that in cases which do not require the criminal standard of reasonable doubt to be applied, the standard of the probability or improbability of an event can be considered as appropriate. 
The concept of reasonable doubt, which is considered to be the appropriate standard of proof for criminal cases, though not defined in the Act has been interpreted through various judicial decisions. In Commonwealth v. Webster  , reasonable doubt is not meant to be comprehended as a mere possible doubt (as all that is connected to the affairs of humans can be said to contain a possible element of doubt). Reasonable doubt is the state of mind of the jurors wherin they are not in a position to confirm the veracity of the guilt of the accused even after careful perusal of all the adduced evidence.  Since the law presumes that the accused is innocent until he is proven guilty, it is essential that before he is condemned, such a reasonable doubt not exist. In the event that a doubt is created in the mind of the Judge, the accused is permitted the benefit of the aforementioned presumption.  Beyond reasonable doubt, however, does not mean that those who have assessed the evidence at hand should be absolutely certain of the guilt of the accused as this would create a bizarre and inconvenient situation by leaving out circumstantial evidence completely.  Although, it is a high degree, almost approaching certainty but not to the extent of scientific or mathematical certainty, for example.  It must merely rule out all the reasonable suppositions conceivable, except the one it is trying to prove.  To generalise, it is important that all the cases that come before the courts, be decided on their own merits and the extent of proof needed be fixed based on the facts and circumstances of each individual case.  This ensures that each case is given its due importance and not always victim to procedural exactitude, which though is essential to ensure justice may not always achieve the same. What is characteristic to the Indian scenario is that the Apex Court has laid down that the conscience of the Court cannot be bound by any rule or provision but the fact that such a conscience is rising is proof of the fact that prudent judgment is at play. This has been likened to explain the standard of reasonable doubt. The doubt which is created in the mind of a reasonable man is to be taken into account while coming to a conclusion and for this doubt to be important enough, it must be proportional in nature to the offence alleged in the case. 
Where reasonable doubt is the standard of proof in criminal cases, the standard required for civil cases is the balance of probabilities. The standard continues to be the balance of probabilities even in cases which are primarily civil in nature but where a criminal charge may be made out against the party. This is concluded from the definitions of the terms ‘proved’ and ‘not proved’, from the Act. Basically, in civil litigation, the Judge has to decide in favour of that party who is supported by the preponderance of proof. This, again, does not mean the evidence considered be wholly exempt from doubt.  It has been held by the courts that for civil cases, the parties are required to make their best case before the courts based on which the decision is granted in favour of either of the parties. For criminal cases, the Court must take all the requisite measure to find out all the relevant adduced and ensure that justice is meted out. 
For the purposes of interpreting the Act, it cannot be said that a higher degree of probability will in all likelihood fulfill the criterion of ‘proof’ under Section 3.  As such, the standard of beyond reasonable doubt is considered to be stricter than it’s counterpart for civil cases, the balance of probabilities. In The degree of sureness that is needed before a fact is said to be proved, is explained in Section 3. Basically, as per the Section, the Court will consider the case and the related evidence before it can say whether an alleged fact is in fact true. The fact is said to have been proved if the Court is of the opinion that it exists or its being is so probable that a man of ordinary prudence would function under the presumption of its existence.  This degree, of a fact being proved based on the available evidence, is higher in case of criminal proceedings. The degree here is that of reasonable doubt which essentially means that the Court is convinced beyond reasonable doubt of the guilt of the accused.  The burden to prove this guilt, in most cases, rests on the prosecution who has to convince the rational mind of the same. The basis of decision in civil litigation is a mere preponderance of probability whereas the basis in criminal trials the assurance expected is much greater, although this depends from a case to case basis.  The nature of the evidence and material put on record.  For example, for a given situation, the evidence produced maybe sufficient to prove a act for the purposes of civil litigation but the same evidence may not be considered adequate to prove a fact in criminal cases.  The more blatant and deliberate a criminal act seems to be, the more is the need for it to proved with certainty. This is perhaps to avoid the severe consequences arising from a wrongful conviction.
Especially in criminal cases, an impartial moral conviction cannot be the sole basis for sentencing the accused but must be backed by such findings and evidence that prove that no other chain of events except the one endorsing the conviction is reasonably possible.  Those facts which support the incrimination of the accused should be find to be in contravention of the circumstantial evidence on record. This is important even though circumstantial evidence is not given the status of conclusive proof; it is just as important as it acts as a ground for forming suspicion against the accused and a negation of the same would help the case of the accused, again, if proved beyond reasonable doubt.  For this, the circumstantial evidence recovered should not be justifiable.  in fact, there is usually no distinction drawn between circumstantial evidence and any other kind of evidence.  As established is the standard of proof for criminal trials, the same is construed liberally when the burden of proof of proving an exception is shifted to the accused. In other words, in a criminal case, when the burden rests on the prosecution, a fact being ‘proved’ would mean a higher standard of proof is necessary while the same (in case of exceptions, for example) is lowered when this burden must be discharged by the accused.  Even so, the Indian Evidence Act doest not contain in its text any mention of the level of satisfaction to be created in a reasonable man’s mind being different in a situation where the accused has to discharge the burden of proof from when the prosecution must do so.  Even though it speaks of a possible shifting of the burden of proof, the fact that the standard of proof is brought down in case of such a shift is explained through decisions of the Court and not based on any statutory provision.
It should also be kept in mind that it is not up to the Court to demand that a certain method of proving a fact should be exclusively used with respect to a case before it unless a specific Act requires this to be done. Similarly, the Court cannot ask for a different standard of proof than what is actually sufficient in a particular case. If asked for, it would be deemed a procedural error or an error in law. 
In the course of writing this research paper, the researcher has been able to draw a few inferences. Firstly, even though the standard of beyond reasonable doubt is higher, it is nowhere expected that the evidence be able to prove the fact absolutely. As long as there is no scope for a prudent mind to doubt the occurrence of an event, that version of events is termed valid. Also simply because the standard of balance of probabilities is considered to be lower than the standard used in criminal trials, it cannot be validly concluded that the seriousness of the matter in civil cases is not given due regard. In the opinion of the researcher, however, there is also a nexus between the nature of penalty in the two cases and the standard of proof to be discharged.
Secondly, quite often, the Courts have received suggestions to design a third standard of proof, which would be somewhere between the criminal standard and the civil one. Even though it seems that this could be the possible solution to peculiar circumstances, like that of criminal allegations within a civil suit, in the humble opinion of the researcher this would create confusion and absurdity, further burdening the judicial system. That there are still ambiguous areas in the presence of two standards shows that perhaps a third standard is not the best step at present.
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