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Kieler Woche - Judge's University 2019 - Standards of Proof

Paul Zupan
Nationality: United States of America
Certifications:
  • International Judge
  • National Judge
  • Regional Umpire
Another issue that I think is often misunderstood is the standard of proof used in resolving disputes under the RRS.  Timo Hass prepared this presentation with a good explanation of what it means and how we apply it. 

Standard of Proof

Created: 19-Jul-04 15:44

Comments

John Grace
Nationality: New Zealand
Certifications:
  • International Judge
  • National Umpire
0
Thanks Tino and Paul for sharing this. It is a very helpful and concise summary of a difficult topic. I have a few comments of my own.

Standards of proof present conceptual difficulties when applied to protest hearings. Tests such as “beyond reasonable doubt” and “comfortable satisfaction” arose from adversarial hearings. In an adversarial hearing judges cannot conduct their own investigations and their ability to ask questions is restricted. Instead (at least in theory) they rely upon professional advocates to present their cases, ask questions and cross-examine, in accordance with complicated rules of evidence. After listening to both sides, if the judge or jury doesn’t know what happened, they apply the appropriate standard/burden of proof. That is often described as the burden of proof because the burden is on one side to satisfy the court when there is doubt.

In common law countries, when there is an inquisitorial type of hearing, such as a commission of inquiry, the adjudicator traditionally determines the matter according to their “reasonably satisfaction” bearing in mind the nature of the inquiry. If they are not reasonably satisfied, they need to inquire further.

What is required for proof “beyond reasonable doubt” seems to vary between different jurisdictions. In most common law jurisdictions juries are told that beyond reasonable doubt doesn’t mean scientific certainty, but on the other hand "reasonable doubt" isn't a vague or fanciful doubt or a doubt based on sympathy. If the jury have a doubt that is reasonable in the circumstances, then the case has not been proved beyond reasonable doubt. 

I think Tino’s statement that “beyond reasonable doubt” requires “evidence is certain or the explanations are the only reasonable explanation” is overstating it (as does WS Case 122). When looking at circumstantial evidence, as protest committees often do, it is a question of the cumulative weight of the evidence. An analogy is often given of a rope. Each individual fiber may not be strong enough by itself, but it is their combined strength that matters.

This reasoning about the cumulative weight has also been applied to the standard of “comfortable satisfaction” by CAS.

The phrase “bearing in mind the seriousness of the alleged misconduct” has been interpreted in different ways by CAS. Some CAS decisions have described the standard of proof as a sliding scale whereby the more serious the allegation, the closer the standard of proof comes to “beyond reasonable doubt”. In “Dirk de Ridder v ISAF” (the case where lead was put in the kingpost of an Americas Cup boat) CAS said that view was wrong. That “…the standard of proof does not itself change depending on the seriousness of the … charges. Rather the more serious the charge, the more cogent the evidence must be in support”.

The way I like to describe it is to say that when we go to the supermarket, we might be 100% sure we want a certain brand of detergent or milk, but that is a different type of certainty than when we make major decisions in our lives, such as getting married or buying a house. We are certain in both, but in the major decisions we take more care. The phrase “bearing in mind the seriousness ….” Is really only describing our natural thinking process.

I would suggest leaving alone the “Briginshaw test”. I’m not sure where that comes from, as the case “Briginshaw v Briginshaw” (which is an Australian family law case from the 1930s) doesn’t say that. That case is often read out of context.

In regard to RRS 2, the phrase “clearly established” isn’t in itself a standard of proof. Again, it is a matter of the cogency of the evidence. 

It is not helpful to refer to burdens of proof in terms of mathematical probability. Human affairs cannot be reduced to mathematics, unless we’re dealing with statistics. I like Tino’s approach in page 10 of his handout.

Created: 19-Jul-04 23:01
P
Angelo Guarino
Nationality: United States of America
Certifications:
  • Judge In Training
  • Fleet Measurer
0
John
In regard to RRS 2, the phrase “clearly established” isn’t in itself a standard of proof. Again, it is a matter of the cogency of the evidence.

So if I’m following you here, your main critique surrounds the use of the word “burden”?

If i attempt internalize and return your point, you wouldn’t describe “clearly established” in the context of “burden of proof”, as using the word “burden” in any context prejudices and inappropriately frames the process into an adversarial one?

That’s it’s more of a description of the state of mind of the juror than the evidence?

Ang
Created: 19-Jul-06 13:18
Paul Zupan
Nationality: United States of America
Certifications:
  • International Judge
  • National Judge
  • Regional Umpire
0
It's a subtle point, but I think the important element of the words "clearly established" in RRS 2 is their context.  The second sentence makes it clear that "clearly established" refers to the "principles of sportsmanship and fairplay."  So the standard of proof is still the balance of probability on whether a rule was broken (i.e.; the boat touched the mark), but the judge must conclude that it was clearly established that the boat violated the principles of sportsmanship and fairplay (i.e.; the boat intentionally didn't take a penalty) in order to penalize under RRS 2.  But I would assert that it is a standard of proof in that context.
Created: 19-Jul-06 13:30
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