Stephen’s prudent person and the standard of proof in Indian Evidence Act Jurisdictions

Sir James Fitzjames Stephen’s Indian Evidence Act of 1872 remains on the statute books of many Commonwealth jurisdictions. The contents of the statute have also remained largely intact. Unsurprisingly, then, there has been a growing chasm between what the statute provides for and how the common law rules on evidence have developed. However, the statute’s treatment of the concept of standard of proof has arguably been more sophisticated than what the courts have given credit for. In this article, it is argued that a return to the statute’s original conception of standard of proof will go some way in alleviating the impact of two intractable problems that have emerged from the standard of proof jurisprudence in Indian Evidence Act jurisdictions: first, the extreme incoherence that has been introduced to the principle of presumption of innocence; and secondly, the confusion surrounding the prospect of varying standards of proof and the requirements for corroboration.