In a legal dispute, one party has the burden of proof to show that they are correct, while the other party had no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts needed to satisfy all the required legal elements of the dispute.
The burden of proof is usually on the person who brings a claim in a dispute. It is often associated with the Latin
maxim ''semper necessitas probandi incumbit ei qui agit'', a translation of which is: "the necessity of proof always lies with the person who lays charges." In civil suits, for example, the plaintiff bears the burden of proof that the defendant's action or inaction caused injury to the plaintiff, and the defendant bears the burden of proving an
affirmative defense
An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's o ...
. The burden of proof is on the prosecutor for
criminal case
Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law i ...
s, and the
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdic ...
is
presumed innocent. If the claimant fails to discharge the burden of proof to prove their case, the claim will be dismissed.
Definition
The term "burden of proof" is a party's duty to prove a disputed assertion or charge, and includes the burden of production (providing enough evidence on an issue so that the trier-of-fact decides it rather than in a peremptory ruling like a directed verdict) and the burden of persuasion (standard of proof such as preponderance of the evidence).
A "burden of persuasion" or "risk of non-persuasion" is an obligation that remains on a single party for the duration of the court proceeding. Once the burden has been entirely discharged to the satisfaction of the
trier of fact, the party carrying the burden will succeed in its claim. For example, the
presumption of innocence
The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must present com ...
in a criminal case places a legal burden upon the prosecution to prove all elements of the offense (generally beyond a reasonable doubt), and to disprove all the defenses except for
affirmative defense
An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's o ...
s in which the proof of non-existence of all affirmative defense(s) is not constitutionally required of the prosecution.
The burden of persuasion should not be confused with the
evidential burden Evidential burden or "production burden" is the obligation to produce evidence to properly raise an issue at trial. Failure to satisfy the evidential burden means that an issue cannot be raised at a court of law.
Definition
Evidential burden has be ...
, or burden of production, or duty of producing (or going forward with evidence) which is an obligation that may shift between parties over the course of the hearing or trial. The evidential burden is the burden to adduce sufficient evidence to properly raise an issue at court.
There is no burden of proof with regard to motive or animus in criminal cases in the United States. The intent surrounding an offense is nevertheless crucial to the elements of the offense in a first-degree-murder conviction. This brings up the ethical dilemma of whether or not a death sentence should be imposed when the defendant's motives or intentions are the contingent factors in sentencing. However, in some cases such as defamation suits with a public figure as the defamed party, the public figure must prove actual malice.
Standard of proof in the United States
Burden of proof refers most generally to the obligation of a party to prove its allegations at trial. In a civil case, the plaintiff sets forth its allegations in a complaint, petition or other pleading. The defendant is then required to file a responsive pleading denying some or all of the allegations and setting forth any
affirmative facts in defense. Each party has the burden of proof of its allegations.
Legal standards for burden of proof
Some evidence
Per ' (1985), in order to take away a prisoner's for a disciplinary violation, prison officials need only have "some evidence," i.e., "a modicum of evidence"; however, the sentencing judge is under no obligation to adhere to good/work time constraints, nor are they required to credit time served.
Reasonable indications
"Reasonable indication (also known as reasonable suspicion) is substantially lower than probable cause; factors to consider are those facts and circumstances a prudent investigator would consider, but must include facts or circumstances indicating a past, current, or impending violation; an objective factual basis must be present, a mere 'hunch' is insufficient."
The reasonable indication standard is used in interpreting trade law in determining if the United States has been materially injured.
Reasonable suspicion
Reasonable suspicion is a low standard of proof to determine whether a ''brief'' investigative stop or search by a police officer or any government agent is warranted. It is important to note that this stop or search must be brief; its thoroughness is proportional to, and limited by, the low standard of evidence. A more definite standard of proof (often
probable cause) would be required to justify a more thorough stop/search. In ''
Terry v. Ohio
''Terry v. Ohio'', 392 U.S. 1 (1968), was a landmark U.S. Supreme Court decision in which the Court ruled that it is constitutional for American police to "stop and frisk" a person they reasonably suspect to be armed and involved in a crime. Spe ...
'', , the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
ruled that reasonable suspicion requires specific, articulable, and individualized suspicion that crime is afoot. A mere guess or "hunch" is not enough to constitute reasonable suspicion.
['']Terry v. Ohio
''Terry v. Ohio'', 392 U.S. 1 (1968), was a landmark U.S. Supreme Court decision in which the Court ruled that it is constitutional for American police to "stop and frisk" a person they reasonably suspect to be armed and involved in a crime. Spe ...
'', 392 US at 27 968
Year 968 ( CMLXVIII) was a leap year starting on Wednesday (link will display the full calendar) of the Julian calendar.
Events
By place Byzantine Empire
* Emperor Nikephoros II receives a Bulgarian embassy led by Prince Boris (the ...
"the issue is whether a reasonably prudent man, in the circumstances, would be warranted in the belief that his safety or that of others was in danger."
An investigatory stop is a seizure under the Fourth Amendment.
[ The state must justify the seizure by showing that the officer conducting the stop had a reasonable articulable suspicion that criminal activity was afoot.][ The important point is that officers cannot deprive a citizen of liberty unless the officer can point to specific facts and circumstances and inferences therefrom that would amount to a reasonable suspicion.][ The officer must be prepared to establish that criminal activity was a logical explanation for what he perceived. The requirement serves to prevent officers from stopping individuals based merely on hunches or unfounded suspicions.][ The purpose of the stop and detention is to investigate to the extent necessary to confirm or dispel the original suspicion.][ If the initial confrontation with the person stopped dispels suspicion of criminal activity the officer must end the detention and allow the person to go about his or her business.][ If the investigation confirms the officer's initial suspicion or reveals evidence that would justify continued detention the officer may require the person detained to remain at the scene until further investigation is complete, and may give rise to the level of probable cause.][
]
Reasonable to believe
In ''Arizona v. Gant
''Arizona v. Gant'', 556 U.S. 332 (2009), was a United States Supreme Court decision holding that the Fourth Amendment to the United States Constitution requires law enforcement officers to demonstrate an actual and continuing threat to their safet ...
'' (2009), the United States Supreme Court defined a new standard, that of "reasonable to believe." This standard applies only to vehicle searches after the suspect has been placed under arrest. The Court overruled ''New York v. Belton
''New York v. Belton'', 453 U.S. 454 (1981), was a United States Supreme Court case in which the Court held that when a police officer has made a lawful custodial arrest of the occupant of an automobile, the officer may, as a contemporaneous incid ...
'' (1981) and concluded that police officers are allowed to go back and search a vehicle incident to a suspect's arrest only where it is "reasonable to believe" that there is more evidence in the vehicle of the crime for which the suspect was arrested.
There is still an ongoing debate as to the exact meaning of this phrase. Some courts have said it should be a new standard while others have equated it with the "reasonable suspicion" of the ''Terry'' stop. Most courts have agreed it is somewhere less than probable cause.
Probable cause
Probable cause is a higher standard of proof than reasonable suspicion, which is used in the United States to determine whether a search, or an arrest, is unreasonable. It is also used by grand juries
A grand jury is a jury—a group of citizens—empowered by law to conduct legal proceedings, investigate potential crime, criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or ...
to determine whether to issue an indictment
An indictment ( ) is a formal accusation that a legal person, person has committed a crime. In jurisdictions that use the concept of felony, felonies, the most serious criminal offence is a felony; jurisdictions that do not use the felonies concep ...
. In the civil context, this standard is often used where plaintiffs are seeking a prejudgement remedy.
In the criminal context, the U.S. Supreme Court in ''United States v. Sokolow'', , determined that probable cause requires "a fair probability that contraband or evidence of a crime will be found." The primary issue was whether Drug Enforcement Administration
The Drug Enforcement Administration (DEA; ) is a Federal law enforcement in the United States, United States federal law enforcement agency under the U.S. Department of Justice tasked with combating drug trafficking and distribution within th ...
agents had a reason to execute a search. Courts have traditionally interpreted the idea of "a fair probability" as meaning whether a fair-minded evaluator would have reason to find it more likely than not that a fact (or ultimate fact) is true, which is quantified as a 51% certainty standard (using whole numbers as the increment of measurement). Some courts and scholars have suggested probable cause could, in some circumstances, allow for a fact to be established as true to a standard of less than 51%, but as of August 2019, the United States Supreme Court has never ruled that the quantification of probable cause is anything less than 51%. Probable cause can be contrasted with "reasonable articulable suspicion" which requires a police officer to have an unquantified amount of certainty the courts say is well below 51% before briefly detaining a suspect (without consent) to pat him down and attempt to question him.[ The "beyond reasonable doubt" standard, used by criminal juries in the United States to determine guilt for a crime, also contrasts with probable cause which courts hold requires an unquantified level of proof well above that of probable cause's 51%. Though it is beyond the scope of this topic, when courts review whether 51% probable cause certainty was a reasonable judgment, the legal inquiry is different for police officers in the field than it would be for grand jurors. It is also notable that in Franks v. Delaware, the U.S. supreme court held that probable cause requires that there not be "reckless disregard for the truth" of the facts asserted.
Examples of a police officer's truth-certainty standards in the field and their practical consequences are offered below:
* no level of evidence required: a knowing and voluntary consent-based encounter between police officer and another person
* reasonable articulable suspicion of criminal activity required: an involuntary stop initiated by the officer to briefly detain, attempt to question, and pat down outer clothing of a person of interest to police.
* probable cause of 51% truth or higher required that a crime was committed by a specific person : arrest and/or grand jury indictment of that person.
]
Some credible evidence
Some credible evidence is one of the least demanding standards of proof. This proof standard is often used in administrative law settings and in some states to initiate Child Protective Services (CPS) proceedings. This proof standard is used where short-term intervention is needed urgently, such as when a child is arguably in immediate danger from a parent or guardian. The "some credible evidence" standard is used as a legal placeholder to bring some controversy before a trier of fact, and into a legal process. It is on the order of the factual standard of proof needed to achieve a finding of "probable cause" used in '' ex parte'' threshold determinations needed before a court will issue a search warrant. It is a lower standard of proof than the "preponderance of the evidence" standard. The standard does not require the fact-finder to weigh conflicting evidence, and merely requires the investigator or prosecutor to present the bare minimum of material credible evidence to support the allegations against the subject, or in support of the allegation; see ''Valmonte v. Bane,'' 18 F.3d 992 (2nd Cir. 1994). In some Federal Appellate Circuit Courts, such as the Second Circuit, the "some credible evidence" standard has been found constitutionally insufficient to protect liberty interests of the parties in controversy at CPS hearings.
Preponderance of the evidence
Preponderance of the evidence (American English), also known as balance of probabilities (British English), is the standard required in most civil
Civil may refer to:
*Civic virtue, or civility
*Civil action, or lawsuit
* Civil affairs
*Civil and political rights
*Civil disobedience
*Civil engineering
*Civil (journalism), a platform for independent journalism
*Civilian, someone not a membe ...
cases and in family court
Family courts were originally created to be a Court of Equity convened to decide matters and make orders in relation to family law, including custody of children, and could disregard certain legal requirements as long as the petitioner/plaintif ...
determinations solely involving money, such as child support
Child support (or child maintenance) is an ongoing, periodic payment made by a parent for the financial benefit of a child (or parent, caregiver, guardian) following the end of a marriage or other similar relationship. Child maintenance is paid d ...
under the Child Support Standards Act, and in child custody
Child custody is a legal term regarding '' guardianship'' which is used to describe the legal and practical relationship between a parent or guardian and a child in that person's care. Child custody consists of ''legal custody'', which is the righ ...
determinations between parties having equal legal rights respecting a child (typically the parents of a child who are divorced, separated, or otherwise living apart, assuming that neither has been found unfit). It is also the standard of proof by which the defendant must prove affirmative defenses
An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's o ...
or mitigating circumstances in civil or criminal court. In civil court, aggravating circumstances also only have to be proven by a preponderance of the evidence, as opposed to beyond reasonable doubt (as in criminal court).
The standard is met if the proposition is more likely to be true than not true. In other words, the standard is satisfied if there is a greater than fifty percent chance that the proposition is true. Lord Denning
Alfred Thompson "Tom" Denning, Baron Denning (23 January 1899 – 5 March 1999) was an English lawyer and judge. He was called to the bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 when ...
, in ''Miller v. Minister of Pensions'', described it simply as "more probable than not." Until 1970, it was also the standard used in juvenile court in the United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
.
Preponderance of the evidence is also the standard of proof used in United States administrative law.
From 2013 to 2020, the Department of Education required schools to use a preponderance of evidence standard in evaluating sexual assault claims.
Clear and convincing evidence
Clear and convincing evidence is a higher level of burden of persuasion than "preponderance of the evidence," but less than "beyond reasonable doubt." It is employed intra-adjudicatively in administrative court determinations, as well as in civil
Civil may refer to:
*Civic virtue, or civility
*Civil action, or lawsuit
* Civil affairs
*Civil and political rights
*Civil disobedience
*Civil engineering
*Civil (journalism), a platform for independent journalism
*Civilian, someone not a membe ...
and certain criminal procedure
Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail or ...
in the United States. For example, a prisoner seeking ''habeas corpus
''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, t ...
'' relief from capital punishment
Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
must prove his factual innocence by clear and convincing evidence. New York State uses this standard when a court must determine whether to involuntarily hospitalize a mentally ill patient or to issue an Assisted Outpatient Treatment Order. This standard was also codified by the United States Supreme Court in all mental health civil commitment cases.
This standard is used in many types of equity
Equity may refer to:
Finance, accounting and ownership
* Equity (finance), ownership of assets that have liabilities attached to them
** Stock, equity based on original contributions of cash or other value to a business
** Home equity, the dif ...
cases, including paternity
Paternity may refer to:
*Father, the male parent of a (human) child
*Paternity (law), fatherhood as a matter of law
* ''Paternity'' (film), a 1981 comedy film starring Burt Reynolds
* "Paternity" (''House''), a 2004 episode of the television seri ...
, persons in need of supervision A person in need of supervision (PINS) is a term frequently used by social services agencies in the United States to describe a juvenile (law), juvenile who is not currently in the household of a parent or legal guardian, or is currently not under t ...
, child custody
Child custody is a legal term regarding '' guardianship'' which is used to describe the legal and practical relationship between a parent or guardian and a child in that person's care. Child custody consists of ''legal custody'', which is the righ ...
, the probate
Probate is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document that is the true last testament of the deceased, or whereby the estate is settled according to the laws of intestacy in the sta ...
of both wills and living wills
An advance healthcare directive, also known as living will, personal directive, advance directive, medical directive or advance decision, is a legal document in which a person specifies what actions should be taken for their health if they are no ...
, petitions to remove a person from life support
Life support comprises the treatments and techniques performed in an emergency in order to support life after the failure of one or more vital organs. Healthcare providers and emergency medical technicians are generally certified to perform basic ...
(" right to die" cases), mental hygiene and involuntary hospitalizations, and many similar cases.
Clear and convincing evidence is the standard of proof used for immunity from prosecution under Florida's controversial stand-your-ground law. Once raised by the defense, the state must present its evidence in a pre-trial hearing, showing that the statutory prerequisites have not been met, and then request that the court deny a motion for declaration of immunity. The judge must then decide from clear and convincing evidence whether to grant immunity. This is a lower burden than "beyond a reasonable doubt," the threshold a prosecutor must meet at any proceeding criminal trial, but higher than the "probable cause" threshold generally required for indictment
An indictment ( ) is a formal accusation that a legal person, person has committed a crime. In jurisdictions that use the concept of felony, felonies, the most serious criminal offence is a felony; jurisdictions that do not use the felonies concep ...
.
Clear and convincing proof means that the evidence presented by a party during the trial must be highly and substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its factuality. In this standard, a greater degree of believability must be met than the common standard of proof in civil actions (i.e. preponderance of the evidence), which only requires that the facts as a threshold be more likely than not to prove the issue for which they are asserted.
This standard is also known as "clear, convincing, and satisfactory evidence"; "clear, cognizant, and convincing evidence", and is applied in cases or situations involving an equitable remedy or where a presumptive civil liberty interest exists. For example, this is the standard or quantum of evidence use to probate
Probate is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document that is the true last testament of the deceased, or whereby the estate is settled according to the laws of intestacy in the sta ...
a last will and testament
A will or testament is a legal document that expresses a person's (testator) wishes as to how their property ( estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distributio ...
.
Beyond reasonable doubt
This is the highest standard used as the burden of proof in Anglo-American jurisprudence and typically only applies in juvenile delinquency proceedings, criminal proceedings, and when considering aggravating circumstances in criminal proceedings. It has been described, in negative terms, as a proof having been met if there is no plausible reason to believe otherwise. If there is a real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence, or lack of evidence, in a case, then the level of proof has not been met.
Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that one would be willing to rely and act upon it without hesitation in the most important of one's own affairs. However, it does not mean an absolute certainty. The standard that must be met by the prosecution's evidence in a criminal prosecution is that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent unless and until proven guilty.
If the trier of fact has no doubt as to the defendant's guilt, or if their only doubts are unreasonable doubts, then the prosecutor has proved the defendant's guilt beyond a reasonable doubt and the defendant should be pronounced guilty.
The term connotes that evidence establishes a particular point to a moral certainty which precludes the existence of any reasonable alternatives. It does not mean that no doubt exists as to the accused's guilt, but only that no ''reasonable'' doubt is possible from the evidence presented. Further to this notion of moral certainty, where the trier of fact relies on proof that is solely circumstantial, ''i.e.'', when conviction is based entirely on circumstantial evidence
Circumstantial evidence is evidence that relies on an inference to connect it to a conclusion of fact—such as a fingerprint at the scene of a crime. By contrast, direct evidence supports the truth of an assertion directly—i.e., without need ...
, certain jurisdictions specifically require the prosecution's burden of proof to be such that the facts proved must exclude to a moral certainty every reasonable hypothesis or inference other than guilt.
The main reason that this high level of proof is demanded in criminal trials is that such proceedings can result in the deprivation of a defendant's liberty or even in their death. These outcomes are far more severe than in civil trials, in which monetary damages are the common remedy.
Another noncriminal instance in which proof beyond a reasonable doubt is applied is LPS conservatorship.
Standard of proof in the United Kingdom
In the three jurisdictions of the UK (Northern Ireland; England & Wales; and Scotland) there are only two standards of proof in trials. (There are others which are defined in statutes, such as those relating to police powers.)
The criminal standard was formerly described as "beyond reasonable doubt". That standard remains, and the words commonly used, though the Judicial Studies Board guidance is that juries might be assisted by being told that to convict they must be persuaded "so that you are sure".
The civil standard is 'the balance of probabilities', often referred to in judgments as "more likely than not".
The civil standard is also used in criminal trials in relation to those defenses which must be proven by the defendant (for example, the statutory defense to drunk in charge
Drunk driving (or drink-driving in British English) is the act of driving under the influence of alcohol. A small increase in the blood alcohol content increases the relative risk of a motor vehicle crash.
In the United States, alcohol is invo ...
that there was no likelihood of the accused driving while still over the alcohol limit). However, where the law does not stipulate a reverse burden of proof, the defendant need only raise the issue and it is then for the prosecution to negate the defence to the criminal standard in the usual way (for example, that of self-defence).
Prior to the decision of the House of Lords in ''Re B (A Child)'' 008 008, OO8, O08, or 0O8 may refer to:
* The Streetwear Brand @008us , inspired by Ian Fleming & Virgil Abloh
*"030", the fictional 030 Agent of MI6
* '' 038: Operation Exterminate'', a 1965 Italian action film
* '' Explosivo 030'' a 1940 Argentine c ...
UKHL 35 there had been some confusion – even at the Court of Appeal – as to whether there was some intermediate standard, described as the 'heightened standard'. The House of Lords found that there was not. As the above description of the American system shows, anxiety by judges about making decisions on very serious matters on the basis of the balance of probabilities had led to a departure from the common law principles of just two standards. Baroness Hale
Brenda Marjorie Hale, Baroness Hale of Richmond, (born 31 January 1945) is a British judge who served as President of the Supreme Court of the United Kingdom from 2017 until her retirement in 2020, and serves as a member of the House of Lords ...
said:
The task for the tribunal then when faced with serious allegations is to recognize that their seriousness generally means they are inherently unlikely, such that to be satisfied that a fact is more likely than not the evidence must be of a good quality. But the standard of proof remains 'the balance of probabilities'.
Other standards for presenting cases or defenses
Air of reality
The "air of reality" is a standard of proof used in Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
to determine whether a criminal defense may be used. The test asks whether a defense can be successful if it is assumed that all the claimed facts are to be true. In most cases, the burden of proof rests solely on the prosecution, negating the need for a defense of this kind. However, when exceptions arise and the burden of proof has been shifted to the defendant, they are required to establish a defense that bears an "air of reality." Two instances in which such a case might arise are, first, when a ''prima facie
''Prima facie'' (; ) is a Latin expression meaning ''at first sight'' or ''based on first impression''. The literal translation would be 'at first face' or 'at first appearance', from the feminine forms of ''primus'' ('first') and ''facies'' (' ...
'' case has been made against the defendant or, second, when the defense mounts an affirmative defense
An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's o ...
, such as the insanity defense
The insanity defense, also known as the mental disorder defense, is an affirmative defense by excuse in a criminal case, arguing that the defendant is not responsible for their actions due to an episodic psychiatric disease at the time of the cr ...
. This is similar to the concept of Summary judgment in the United States, though not identical.
Evidentiary standards of proof
Depending on the legal venue or intra-case hearing, varying levels of reliability of proof are considered dispositive of the inquiry being entertained. If the subject threshold level of reliability has been met by the presentation of the evidence, then the thing is considered legally proved for that trial, hearing or inquest. For example, in California, several evidentiary presumptions are codified, including a presumption that the owner of legal title is the beneficial owner (rebuttable only by clear and convincing evidence).
Examples
Criminal law
Criminal
In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...
cases usually place the burden of proof on the prosecutor
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the Civil law (legal system), civil law inquisitorial system. The prosecution is the legal party responsible for presenting the ...
(expressed in the Latin
Latin (, or , ) is a classical language belonging to the Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through the power of the ...
brocard ''ei incumbit probatio qui dicit
The presumption of innocence is a legal principle that every person Accused (law), accused of any crime is considered innocent until proven guilt (law), guilty. Under the presumption of innocence, the legal burden of proof is thus on the Prosecu ...
, non qui negat'', "the burden of proof rests on who asserts, not on who denies"). This principle is known as the presumption of innocence
The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must present com ...
, and is summed up with "innocent until proven guilty", but is not upheld in all legal systems or jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Jur ...
s. Where it is upheld, the accused will be found not guilty if this burden of proof is not sufficiently shown by the prosecution.
The presumption of innocence means three things:
* With respect to the critical facts of a case the defendant has no burden of proof whatsoever.
* The state must prove the critical facts of the case to the appropriate level of certainty.
* The jury is not to draw any inferences adverse to the defendant from the fact that he has been charged with a crime and is present in court facing the charges against him.
For example, if the defendant (D) is charged with murder, the prosecutor (P) bears the burden of proof to show the jury that D did indeed murder someone.
* Burden of proof: P
** Burden of production: P has to show some evidence that D had committed murder. The United States Supreme Court has ruled that the Constitution requires enough evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. If the judge rules that such burden has been met, then it is up to the jury itself to decide if they are, in fact, convinced of guilty beyond a reasonable doubt. If the judge finds there is not enough evidence under the standard, the case must be dismissed (or a subsequent guilty verdict must be vacated and the charges dismissed).
*** e.g. witness
In law, a witness is someone who has knowledge about a matter, whether they have sensed it or are testifying on another witnesses' behalf. In law a witness is someone who, either voluntarily or under compulsion, provides testimonial evidence, e ...
, forensic evidence, autopsy
An autopsy (post-mortem examination, obduction, necropsy, or autopsia cadaverum) is a surgical procedure that consists of a thorough examination of a corpse by dissection to determine the cause, mode, and manner of death or to evaluate any di ...
report
*** Failure to meet the burden: the issue will be decided as a matter of law. In this case, D is presumed innocent
** Burden of persuasion: if at the close of evidence, the jury cannot decide if P has established with relevant level of certainty that D had committed murder, the jury must find D not guilty of the crime of murder
*** Measure of proof: P has to prove every element of the offense beyond a reasonable doubt, but not necessarily prove every single fact beyond a reasonable doubt.
However, in England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
, the Magistrates' Courts Act 1980
The Magistrates' Courts Act 1980 (c. 43) is an Act of the Parliament of the United Kingdom. It is a consolidation Act.The Public General Acts and General Synod Measures 1980. HMSO. London. . Part IV. Pages ''i'', ''j'' and i. It codifies the p ...
, s.101 stipulates that where a defendant relies on some "exception, exemption, proviso, excuse or qualification" in his defence in a summary trial, the legal burden of proof as to that exception falls on the defendant, though only on the balance of probabilities. For example, a person charged with being drunk in charge
Drunk driving (or drink-driving in British English) is the act of driving under the influence of alcohol. A small increase in the blood alcohol content increases the relative risk of a motor vehicle crash.
In the United States, alcohol is invo ...
of a motor vehicle can raise the defense that there was no likelihood of his driving while drunk. The prosecution has the legal burden of proof beyond reasonable doubt that the defendant exceeded the legal limit of alcohol and was in control of a motor vehicle. Possession of the keys is usually sufficient to prove control, even if the defendant is not in the vehicle and is perhaps in a nearby bar. That being proved, the defendant has the legal burden of proof on the balance of probabilities that he was not likely to drive.
In 2002, such practice in England and Wales was challenged as contrary to the European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
(ECHR), art.6(2) guaranteeing right to a fair trial. The House of Lords
The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
held that:
* A mere evidential burden did not contravene art. 6(2);
* A legal / persuasive burden did not necessarily contravene art. 6(2) so long as confined within reasonable limits, considering the questions:
** ''What must the prosecution prove to transfer burden to the defendant?''
** ''Is the defendant required to prove something difficult or easily within his access?''
** ''What threat to society is the provision designed to combat?''
In some cases, there is a reverse onus on the accused. A typical example is that of a hit-and-run
In traffic laws, a hit and run or a hit-and-run is the act of causing a traffic collision and not stopping afterwards. It is considered a supplemental crime in most jurisdictions.
Additional obligation
In many jurisdictions, there may be an ...
charge prosecuted under the Canadian Criminal Code. The defendant is presumed to have fled the scene of a crash, to avoid civil or criminal liability, if the prosecution can prove the remaining essential elements of the offense.
Civil law
In civil law cases, such as a dispute over a contract or a claim about an accidental injury
An injury is any physiological damage to living tissue caused by immediate physical stress. An injury can occur intentionally or unintentionally and may be caused by blunt trauma, penetrating trauma, burning, toxic exposure, asphyxiation, o ...
, the burden of proof usually requires the plaintiff to convince the trier of fact (whether judge or jury) of the plaintiff's entitlement to the relief sought. This means that the plaintiff must prove each element of the claim, or cause of action, in order to recover.
This rule is not absolute in civil lawsuits; unlike with criminal offenses, laws may establish a different burden of proof, or the burden in an individual case may be reversed as a matter of fairness. For example, if a bank or government agency has a legal duty
A duty (from "due" meaning "that which is owing"; fro, deu, did, past participle of ''devoir''; la, debere, debitum, whence "debt") is a commitment or expectation to perform some action in general or if certain circumstances arise. A duty may ...
to keep certain records, and a lawsuit alleges that the proper records were not kept, then the plaintiff may not be required to prove a negative; instead, the respondent could be required to prove to the court that the records were kept.
Civil cases of the U.S. Supreme Court
In ''Keyes v. Sch. Dist. No. 1'', the United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
stated: "There are no hard-and-fast standards governing the allocation of the burden of proof in every situation. The issue, rather, 'is merely a question of policy and fairness based on experience in the different situations'." For support, the Court cited 9 John H. Wigmore, Evidence § 2486, at 275 (3d ed. 1940). In ''Keyes'', the Supreme Court held that if "school authorities have been found to have practiced purposeful segregation in part of a school system", the burden of persuasion shifts to the school to prove that it did not engage in such discrimination in other segregated schools in the same system.[
In ''Director, Office of Workers' Compensation Programs v. Greenwich Collieries'', the Supreme Court explained that "burden of proof" is ambiguous because it has historically referred to two distinct burdens: the ''burden of persuasion'', and the ''burden of production''.]
The Supreme Court discussed how courts should allocate the burden of proof (i.e., the burden of persuasion) in ''Schaffer ex rel. Schaffer v. Weast''. The Supreme Court explained that if a statute is silent about the burden of persuasion, the court will "begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims".[ In support of this proposition, the Court cited 2 J. Strong, ''McCormick on Evidence'' § 337, 412 (5th ed. 1999), which states:
At the same time, the Supreme Court also recognized "The ordinary default rule, of course, admits of exceptions. ... For example, the burden of persuasion as to certain elements of a plaintiff's claim may be shifted to defendants, when such elements can fairly be characterized as affirmative defenses or exemptions. ... Under some circumstances this Court has even placed the burden of persuasion over an entire claim on the defendant. ... onetheless, sent some reason to believe that Congress intended otherwise, therefore, ]he Supreme Court
He or HE may refer to:
Language
* He (pronoun), an English pronoun
* He (kana), the romanization of the Japanese kana へ
* He (letter), the fifth letter of many Semitic alphabets
* He (Cyrillic), a letter of the Cyrillic script called ''He'' in ...
will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief."[
]
See also
* Philosophic burden of proof
The burden of proof (Latin: ''onus probandi'', shortened from ''Onus probandi incumbit ei qui dicit, non ei qui negat'') is the obligation on a party in a dispute to provide sufficient warrant for its position.
Holder of the burden
When two par ...
* Probative
* Rebuttable presumption
In common law and civil law, a rebuttable presumption (in Latin, ''praesumptio iuris tantum'') is an assumption made by a court that is taken to be true unless someone proves otherwise. For example, a defendant in a criminal case is presumed inn ...
* Shifting burden of persuasion
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* ''Shift'' (series), a 2008 online video game series by Armor Games
* '' Need for Speed: Shift'', a 2009 racing video game
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Literature
* ''Sh ...
References
Bibliography
*
External links
Complete text of Federal Rules of Civil Procedure (Cornell Univ.)
{{DEFAULTSORT:Burden Of Proof
American legal terminology
Evidence law
Legal doctrines and principles
Doubt