united-states england-and-wales legal-terms legal-history legal-concepts
How did balance of probabilities come to be called preponderance of the evidence in the US?
<p>The civil standard of proof is rather than &quot;beyond a reasonable doubt&quot; (what criminal standards of proof are called in both England and the US), either the balance of probabilities or a preponderance of the evidence depending if you are in the UK or US. When and how did American lawyers come to call this concept which appears to be semantically identical something different?</p>

<p><a href="https://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1286&amp;context=flr" rel="nofollow noreferrer">This article</a> may be helpful. The development of a distinct, lower standard of proof for civil cases comes after the US came into existence, thus the expressions were developed independently, after the doctrine itself started to develop. Various expressions are used, often with different implications that could lead to fixing a specific expression to a definite doctrine, for instance &quot;greater weight of the evidence&quot;, &quot;more likely than not&quot; as well as the contender expressions.</p>
<p>Earliest expressions of the principle in question include Edward Wynne <em>Eunomus</em> (1768)</p>
<blockquote>
<p>Wherever a verdict is given, the Plaintiff at least must give evidence
to maintain his Declaration: where evidence is produced on both sides,
the verdict is given for the Plaintiff or Defendant, according to the
superior weight of evidence.</p>
</blockquote>
<p>Richards Wooddeson's 1777 formulation is</p>
<blockquote>
<p>In causes concerning civil rights and property, that side must
prevail, in favor of which probability preponderates: but the (a)
humanity of our law never esteems the turn of the balance sufficient
to convict a man of any, especially a capital, crime. For it requires
a very strong and irrefragable presumption of guilt to justify the
infliction of the severer human punishments</p>
</blockquote>
<p>In Delaware (1801) in the case <a href="https://casetext.com/case/state-v-crocker" rel="nofollow noreferrer">State v. Crocker</a>, 2 Del. Cas. 150, the doctrine is &quot;named&quot;, preponderance of evidence:</p>
<blockquote>
<p>In civil cases a preponderance of evidence is sufficient for you to
convict; in criminal, you should have proof</p>
</blockquote>
<p>You can find &quot;balance of probabilities&quot; in a UK case <a href="https://www.google.com/books/edition/Reports_of_Cases_Decided_in_the_High_Cou/8eNNAQAAIAAJ?hl=en&amp;gbpv=1&amp;dq=%22balance%20of%20probabilities%22&amp;pg=PA151&amp;printsec=frontcover" rel="nofollow noreferrer">Head v. Head</a> (1823).</p>
<p>The origin of the construction &quot;balance of probabilities&quot; is philosophy and theology, whereas &quot;preponderance of evidence&quot; is a more-distinctly legal expression. Since the underlying ideas were developed separately in the US and England, it is not surprising that different expressions were attached to the doctrine.</p>
