Suggestion for appropriate definitions for various levels of 'proof' required at a trial

This is a direct follow up to my last question: How/could a legal system whose punishments were based off of "level of certainty" that crime occured function?

I suggested that a jury can decide to what burden of proof level the prosecution has made the case, if any, and the potential punishment for the crime would depend on the burden reached by the prosecution, the more confident they are of the crime the higher the maximum punishment.

I wrote the following as a sample list of 'levels' that the prosecution can be found to have met:

1. "clear and convincing evidence" (current burden for civic cases)
2. "evidence without dispute" (no alternate explanation for the crime exists that is deemed creditable, ie no one else could likely have done the same)
3. ...some other stricter level here...
4. "beyond a reasonable doubt" (current level)
5. "Beyond a reasonable doubt, direct evidence" (requires clear direct, ie non-circumstantial, evidence in addition to above, you're going to need DNA or something similar"
6. "beyond a shadow of a doubt" (requires something like clear video recording the entire crime occurring and that the accused did it, or hundreds of witnesses who could clearly see their face and cops arresting you in the act; basically you can't possible imagine this person could every be innocent)

I don't like my 2 & 3 in that sample. Can anyone suggest a good definition of various levels of burden that can be met. I'm looking for a clear-as-possible way of distinguishing the various levels, something that can be taught in the culture to a high enough degree that intelligent people who are not lawyers have a decent idea of how the various levels differ.

Any/all good ways of distinguishing different levels is appreciated. I am most interested in at least one good separation between my 1 and 4 example, but any clear definition of different levels is nice.

Any comments about the actual premise can be added to the linked question, this is just trying to get a good definition of different levels of burden that could be used in the world.

I also need cleaner terminology for the world, a quick clean way of specifying what the various levels are and referencing what level was met. By that I mean what is the cleanest & quickest way to say that Bob was "found guilty of assault with a burden of proof equal to the second level", it would presumably be something that is said quickly, since every felony conviction would have to reference what level it was made at so a quick way of phrasing it will quickly be created by lawyers. Any suggestions on good terminology is welcome.

• Just to be clear, 6 is stricter and harder to prove than 1? – Frostfyre Nov 17 '15 at 16:18
• I suggest you include the country of origin for those levels of proof - different countries require different levels of proof and lay the burden on different parties. – Jim2B Nov 17 '15 at 16:27
• Your number 1 is properly called "preponderance of evidence" in the US. The full current list, along with definitions and reasoning, is here: en.wikipedia.org/wiki/… – Mike L. Nov 17 '15 at 16:29
• @frostfyre yes. 1 is lower then current burden for crimes, 4 is current burden, and 6 is unquestionable proof. Though I'm not committed to any of the above, I'm looking for good suggestions for a scale which may or may not maintain my current scale. – dsollen Nov 17 '15 at 16:41
• @MikeL.No my one is "clear and convincing evidence", literally that is what it is defined as. it is one step above "preponderance of evidence". I got the term off the very wikipedia page you linked lol. However, they only have one level above my 1, which is my 4. I'm keeping those definitions, but need ideas for expanding them with more discrete levels. – dsollen Nov 17 '15 at 16:43

1. "Convincing" -- The accused in this case had the means, opportunity, and motive.
2. "Probable" -- All the evidence in this case points to the accused.
3. "Certain" -- DNA/fingerprint of the accused was positively identified at the scene and/or there exists reliable video/photographic/eyewitness evidence of the accused in the area.
4. "Obvious" -- An eyewitness positively and definitively identifies the accused and there is no ulterior motive to the eyewitness's testimony.
5. "Indisputable" -- Multiple eyewitnesses positively and definitively identify the accused as being at the scene/in the area and at least three have no ulterior motive, one eyewitness (usually a victim) with no ulterior motive identifies the accused as the perpetrator, or there is clear and reliable video/photographic evidence of the accused at the scene/in the area/committing the crime.

"After ten years in prison, Jeremy Greene was released today. Greene was convicted to the fourth degree of manslaughter in the second degree."

Alternatively, use the case terminology identified above:

"Maxine Graham is accused of probable vandalism and, if found guilty, will be sentenced to six months of community service."

• yes, the x degree is the most obvious nomenclature, I will likely use that. Though I would like to try to get definitions that are more exact, particularly for the last 3, so a jury knows what to look for. To find someone guilty of X degree you must meet X-1 requirements plus extra requirement Y. Like how my 5 option is 4, but with definitive direct evidence as well; since someone can be found guilty currently with only curcumstantial evidence. Once you decide someone reached level 4 to decide if their at 5 you have a simple question, does convincing direct evidence exist. – dsollen Nov 17 '15 at 16:49
• @dsollen So you're looking for clarity prior to conviction, to help the jury, rather than after conviction, to help the public? – Frostfyre Nov 17 '15 at 16:54
• yes. That clarity would still help the public, but it's clarity for the jury that I most care about. There is an issue with jury bias, a desire to punish someone because he is a despicable person, or the crime is so severe, or just because he is a minority a jurer is subconsciously bigoted towards. I want to write as overt a distinction between the levels as possible so that a jury has very clear distinctions to judge against, to help correct for their own biases by removing as much subjectivity as possible (though obviously any ruling will have to be somewhat subjective) – dsollen Nov 17 '15 at 17:12
• @dsollen See my edit. – Frostfyre Nov 17 '15 at 17:22
• I think option #1 may cause a lot of problems with punishing someone who doesn't deserve it, if motive isn't required or cannot be shown I don't know that we can consider it a crime. – James Nov 18 '15 at 15:14

Different countries practice different legal traditions so it would help if you also established the cultural tradition of your world/country.

Perhaps two of the most influential are

I am mostly familiar with the English Common Law tradition.

Preponderance of Evidence

In that tradition, civil cases in the US are determined by a "Preponderance of Evidence" (equivalent of your "clear and convincing evidence") - imagine a scale with evidence place on one side or the other side of the scale. Which ever side has more and convincing evidence wins.

5 $\sigma$

In certain branches of hard sciences (e.g. physics), the evidence of a new discovery must break the statistical $5 \sigma$ level (99.73%) of proof. This level of proof might not be usable in today's subjective legal system. However, it might become more attractive as our ability to collect and analyze evidence gets better (e.g. the DNA evidence is above a 99.73% likely one person and not another).

• ahh. I better understand your question for country. Yes I would presume something similar to English common law. – dsollen Nov 17 '15 at 16:50

In U.S. courts today, there are three levels of proof that I know of:

Preponderance of evidence: This is what is used in civil cases. It means, whichever side's arguments are more convincing. If Al says that Bob owes him \$1000 and Bob says he doesn't, than whichever way the court rules, if we're wrong, somebody is out \$1000. So if we're 51% sure Al is right, it makes sense to rule in his favor.

Beyond a reasonable doubt: Used in criminal cases. One could always have some doubt; one could always imagine a scenario where the person is innocent even though there were 10 eye-witnesses, his fingerprints were found on the murder weapon, he was caught running form the scene of the crime, etc. Maybe it was all a series of coincidences, mis-identification, etc. But besides such far-out scenarios, is the evidence overwhelming? This standard makes sense for a crime because we generally consider that it is worse to lock up an innocent person than to let a guilty person go free.

Clear and convincing evidence: This is a tougher standard than preponderance of evidence but not as tough as beyond reasonable doubt. I'm not a lawyer but I think it's generally used in cases of administrative law, like should a company be required to install this anti-pollution device.

All that said, it seems to me that they all come down to "how sure are you?" Preponderance of evidence is basically a 51% test. Beyond reasonable doubt is like 95%. So you could easily have a series of numerical steps: 51% certain, 60%, 70%, 80%, 90%, 95%, however many brackets you want. I presume less than or equal to 50% you wouldn't convict under any circumstances, and 100% is impossible. Well, I suppose a society that is really fanatical about law and order might say, "10% chance that he's guilty? Lock him up. Better safe than sorry."

Of course it would be difficult to actually calculate the percentage certainty in real life. If we already have one eye-witness, does a second eye-witness add 10% to the certainty? 20%? What if the witness has poor eyesight, does that make it only 15%? Etc. Still, people often speak of such numerical levels of certainty in a casual way. "I'm 75% sure that I will get that job I applied for", etc.

There are lots of phrases for levels of certainly that you could use. "Probably", "certainly", "overwhelming evidence", "absolute proof", "pretty sure", "very convincing", and so on.

Just BTW, I don't think I'd want to live in a society with such a legal code. Like, "We're not sure if he committed the murder, so we can't execute him, but maybe he did it, so we'll throw him in prison for 20 years. You think there's only a 10% chance that he did it? Okay then, let's just throw him in prison for 2 years."

• Minor edit to improve readability. – James Nov 18 '15 at 16:32