Types of Burden

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Types of burden

There are generally two broad types of burdens:

A "legal burden" or a "burden of persuasion" is an obligation that remains

on a single party for the duration of the claim. 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 places a

legal burden upon the prosecution to prove all elements of the offence (generally

beyond a reasonable doubt) and to disprove all the defences except for

affirmative defenses in which the proof of nonexistence of all affirmative

defence(s) is not constitutionally required of the prosecution.[1]

An "evidentiary burden" or "burden of leading evidence" is an obligation

that shifts between parties over the course of the hearing or trial. A party may

submit evidence that the court will consider prima facie evidence of some state

of affairs. This creates an evidentiary burden upon the opposing party to present

evidence to refute the presumption.

Standard of proof

The "standard of proof" is the level of proof required in a legal action to

discharge the burden of proof, which is to convince the court that a given

proposition is true. The degree of proof required depends on the circumstances

of the proposition. Typically, most countries have two levels of proof or the

balance of probabilities: preponderance of evidence - (lowest level of proof,

used mainly in civil trials) beyond a reasonable doubt - (highest level of proof,

used mainly in criminal trials)

In addition to these, the U.S. introduced a third standard called clear and

convincing evidence, which is the medium level of proof, used, for example, in

cases in which the state seeks to terminate parental rights.

The first attempt to quantify reasonable doubt was made by Simon [clarification

needed] in 1970. In the attempt, she presented a trial to groups of students. Half

of the students decided the guilt or innocence of the defendant. The other half

recorded their perceived likelihood, given as a percentage, that the defendant

committed the crime. She then matched the highest likelihoods of guilt with the

guilty verdicts and the lowest likelihoods of guilt with the innocent verdicts.

From this, she gauged that the cutoff for reasonable doubt fell somewhere

between the highest likelihood of guilt matched to an innocent verdict and the

lowest likelihood of guilt matched to a guilty verdict. From these samples,

Simon concluded that the standard was between 0.70 and 0.74.[2]

Standards for searches, arrests or warrants

Reasonable suspicion

Reasonable suspicion is a low standard of proof in the U.S. 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 and/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 warrant a more thorough stop/search. In Terry

v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court 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.

Probable cause for arrest

Main article: Probable cause

Probable cause is a relatively low standard of evidence, which is used in the

United States to determine whether a search, or an arrest, is warranted. It is

also used by grand juries to determine whether to issue an indictment. In the


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civil context, this standard is often used where plaintiffs are seeking a

prejudgment remedy.

In the criminal context, the U.S. Supreme Court in United States v. Sokolow,

490 U.S. 1 (1989), determined that probable cause requires "a fair probability

that contraband or evidence of a crime will be found" in determining whether

Drug Enforcement Administration agents had a reason to execute a search.

Courts vary when determining what constitutes a "fair probability," some say

30%, others 40%, others 51%.

A good illustration of this evidence/intrusiveness continuum might be a

typical police/citizen interaction. Consider the following three interactions:

no level of suspicion required: a consensual encounter between officer and

citizen

reasonable suspicion required: a stop initiated by the officer that wouldcause a reasonable person to feel that he or she is not free to leave

probable cause required: arrest.

Standards for presenting cases or defenses

Air of reality

The "air of reality" is a standard of proof used 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, he is 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 case has been made against the defendant or, second, when the

defense mounts an affirmative defense, such as the insanity defense.

Standards for conviction

Preponderance of the evidence

Preponderance of the evidence, also known as balance of probabilities is the

standard required in most civil cases. The standard is met if the proposition is

more likely to be true than not true. Effectively, the standard is satisfied if

there is greater than 50 percent chance that the proposition is true. LordDenning, in Miller v. Minister of Pensions, [3] described it simply as "more

probable than not."

Clear and convincing evidence

Clear and convincing evidence is the higher level of burden of persuasion

sometimes employed in the U.S. civil procedure. To prove something by

"clear and convincing evidence", the party with the burden of proof must

convince the trier of fact that it is substantially more likely than not that the

thing is in fact true. This is a lesser requirement than "proof beyond a

reasonable doubt", which requires that the trier of fact be close to certain of

the truth of the matter asserted, but a stricter requirement than proof by

"preponderance of the evidence," which merely requires that the matter

asserted seem more likely true than not.

Beyond reasonable doubt

Main article: Reasonable doubt. This section may contain original research or

unverified claims. Please improve the article by adding references. See the

talk page for details. (September 2008)

This is the standard required by the prosecution in most criminal cases within

an adversarial system and is the highest level of burden of persuasion. This

means that the proposition being presented by the government must be proven

to the extent that there is no "reasonable doubt" in the mind of a reasonable

person that the defendant is guilty. There can still be a doubt, but only to the

extent that it would not affect a "reasonable person's" belief that the defendant


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is guilty. If the doubt that is raised does affect a "reasonable person's" belief

that the defendant is guilty, the jury is not satisfied beyond a "reasonable

doubt". The precise meaning of words such as "reasonable" and "doubt" are

usually defined within jurisprudence of the applicable country.

What is the burden of proof?First, we must address the meaning of theword burden. Most often[citation needed] jurors interpret this word as

meaning weight. Jurors picture the state in the person of the prosecutor with a

massive object on his back attempting to carry it up some incline for some

distance defense attorneys have been heard to say that the state has a heavy

burden. The word burden has nothing to do with weight, mass or any other

physical properties the word simply means responsibility. It is the states

responsibility to prove the defendants guilt. It has nothing to do with the

degree or intensity of proof. Who has to prove the defendants guilt? The Statedoes. To what degree must guilt be proven? Beyond a reasonable doubt. What

does that mean? Again the problem is with words being used in an abnormal

or special way. The word beyond normally means farther than or more than.

[4] Clearly this is not the meaning of the word in the phrase beyond a

reasonable doubt. The state does not have to carry its burden beyond some

point that constitutes reasonable doubt. The state certainly is not trying to

prove that there is more than a reasonable doubt.[5]If anything the states

responsibility is to prove that there is less than a reasonable doubt.[6] Theword beyond in the phrase beyond a reasonable doubt means to the

exclusion of.[7] That is the state must exclude any and all reasonable doubt

as to the defendants guilt. Simply put, the phrase means that if a juror has a

reasonable doubt it is her duty to return a verdict of not guilty.[8] On the other

hand, if a juror does not have a reasonable doubt then the state has met its

burden of proof and it is the jurors duty to return a verdict of guilty.[9]

What is a reasonable doubt? Jury instructions typically say that a

reasonable doubt is a doubt based on reason and common sense and typically

use phrases such as fully satisfied or entirely convinced in an effort to

quantify the standard of proof.[10] These efforts tend to create more problems

than they solve. For example, take the phrases fully satisfied and entirely

convinced. A person is satisfied when she is content, pleased, happy,

comfortable or at ease. The fellow leans back in his chair after a meal, pats his

stomach and says, that was one satisfying meal. Is that what the state must

do - offer sufficient proof that a juror is content, happy, pleased or

comfortable with her verdict. Absolutely not. A juror is not required to be

pleased with the verdict or happy with the verdict. The state is not required to

produce sufficient evidence to eliminate all reasonable doubt AND to please

the juror or to eliminate all reservations about whether the juror has done the

right thing. Satisfied in the phrase fully satisfied simply means convinced.

[11]. Likewise the modifiers "entirely" and "fully" do not mean that you have

to be 100 percent certain of the defendants guilt. The standard of proof is not

absolute certainty. A juror is "fully satisfied" or "entirely convinced" when the

state had eliminated all reasonable doubt.

Jury instructions often state that a reasonable doubt can arise from the "lack or

insufficiency of the evidence." This phrase is rich with possibilities for

concocting doubt Where are the fingerprints? Where is the DNA evidence?

Where are the other officers who assisted with the arrest? These arguments

invite, actually require that the jury engage in speculation something a jury

is specifically instructed not to do. An example, a person enters a store. The

clerk who is talking to her friend on the telephone sees the man. She tells her

friend that the man appeared to be casing the place and asks her friend to call

the police. A few minutes later the man leaves the store, walks to his car,

opens the trunk, and retrieves a ski-mask and a shotgun. The man dons the


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mask, re-enters the store and tells the clerk to give it up. The clerk does as she

is told and put the contents of the till into a bag which she hands to the man.

The man then leaves the store. As he is running to his car the police arrive.

The man flees from the scene with the police officers in hot pursuit. As he

runs the man tosses the bag, gun and mask. He is caught shortly thereafter,

returned to the store and is positively identified by the clerk as the man who

cased the store and then robbed her. The bag is retrieved and the money in the

bag exactly matches to the penny the amount taken from the register. At the

trial, the defense attorney asks the lead investigator whether hair samples were

taken from the mask and submitted to the lab for analysis. The investigator

says no. During closing arguments the defense attorney conveniently ignores

all the evidence of guilt and pounds away at the sloppy investigation and

argues that had the hair analysis could have provided the jury with "irrefutable

evidence" of the defendant's guilt or innocence. Is the absence of the hair

evidence what the phrase lack of insufficiency of the evidence refers to. No.

The phrase refers to the convincing force of the evidence presented. The

presence or absence of reasonable doubt is to be determined by the evidence

presented at trial not what might have been presented. There is a standard

objection- Calls for speculation that is exactly what the defense attorney is

asking the jury to do, to speculate. Not simple speculation but a series of

"what ifs." What if a hair sample had been found, what if the hair sample had

been sent to the lab for DNA analysis, what if he DNA profile had not

matched the defendants. What if + what if + what if = reasonable doubt.

Remember that the states duty is to eliminate any reasonable doubt, any

logical explanation that arises from the evidence. The defense's argument is

not a proper argument. It is a tool of logical inversion[12] All the evidence

would compel one to say the defendant is guilty. However, the defendant

wants the jurors to think, "but still there is that missing hair analysis evidence.

I wonder what that would have shown?" A jury properly draw conclusion

based on the evidence and inferences drawn from the evidence. The strength

of the conclusions is based on the persuasive force of the evidence. With one

exception, "Lack or insufficiency" refers to the convincing force of the

evidence presented. The exception is the missing witness rule.

The missing witness rule is:

"The failure to call a witness raises a presumption of inference that the

testimony of such person would be unfavorable to the party failing to call him,

but there is no such presumption or inference where the witness is not

available, or where his testimony is unimportant or cumulative, or where he is

equally available to both sides."[13]

"The reasonable-doubt standard plays a vital role in the American scheme of

criminal procedure. It is a prime instrument for reducing the risk of

convictions resting on factual error. The standard provides concrete substance

for the presumption of innocence that bedrock "axiomatic and elementary"

principle whose "enforcement lies at the foundation of the administration of

our criminal law."[14] . Proof beyond a reasonable doubt did not become the

accepted standard in criminal cases until the middle of the nineteenth century.

[15] Proof beyond a reasonable doubt was not the standard by which guilt was

determined when the Bill of Rights was drafted in 1789.[16] This may explain

the absence of the phrase in the constitution. Nor was it an element of due

process.

Attempts to quantify the burden of proof are exercises in futility. It is more a

qualitative than quantitative concept. As Rembar notes, "Proof beyond a

reasonable doubt is a quantum without a number."[17]

Non-legal Standards

Beyond the shadow of a doubt


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Main article: Beyond the shadow of a doubt

Beyond the shadow of a doubt is the most strict standard of proof. It requires

that there be no doubt as to the issue. Widely considered an impossible

standard, a situation stemming from the nature of knowledge itself, it is

valuable to mention only as a comment on the fact that evidence in a courtnever need reach this level. This phrase, has, nonetheless, come to be

associated with the law in popular culture.

Examples

Criminal law

In the West, criminal cases usually place the burden of proof on the prosecutor

(expressed in the Latin brocard ei incumbit probatio qui dicit, non que negat,

"the burden of proof rests on who asserts, not on who denies"). This principleis known as the presumption of innocence, and is summed up with "innocent

until proven guilty," but is not upheld in all legal systems or jurisdictions.

Where it is upheld, the accused will be found not guilty if this burden of proof

is not sufficiently shown by the prosecution.

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 murder someone.

Burden of proof: P

Burden of production: P has to show some evidence that D had committedmurder. 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 of

course it is up to the jury itself to decide if they are, in fact, convinced of

guilty beyond a reasonable doubt.[18] 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,

forensic evidence, autopsy report Failure to meet the burden: the issue will be

decided as a matter of law (the judge makes the decision), 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 offence beyond a

reasonable doubt, but not necessarily prove every single fact beyond a

reasonable doubt.

In other countries, criminal law reverses the burden of proof, and there is a

presumption of guilt.

However, in England and Wales, the Magistrates' Courts Act 1980, s.101

stipulates that where a defendant relies on some "exception, exemption,

proviso, excuse or qualification" in his defence, 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 of a

motor vehicle can raise the defence that there was no likelihood of his driving

while drunk.[19] The prosecution have 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.[20]

Similar rules exist in trial on indictment. Some defences impose an evidential

burden on the defendant which, if met, imposes a legal burden on the

prosecution. For example, if a person charged with murder pleads the right of

self-defense, the defendant must satisfy the evidential burden that there are

some facts suggesting self-defence. The legal burden will then fall on the


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prosecution to prove beyond reasonable doubt that the defendant was not

acting in self-defence.[20]

In 2002, such practice in England and Wales was challenged as contrary to the

European Convention on Human Rights (ECHR), art.6(2) guaranteeing right

to a fair trial. The House of Lords held that such burdens were not contrary to

the ECHR:[20][21]

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 is threat to society that the provision is designed to combat?

Civil law

In civil law cases, the "burden of proof" 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.

The burden of proof must be distinguished from the "burden of going

forward," which simply refers to the sequence of proof, as between the

plaintiff and defendant. The two concepts are often confused.

Decisions by the U.S. Supreme Court

In Keyes v. Sch. Dist. No. 1, 413 U.S. 189 (1973), the United States Supreme

Court 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 engaged in such discrimination in other segregated schools in the same

system.

In Director, Office of Workers Compensation Programs v. Greenwich

Collieries, 512 U.S. 267 (1994), 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, 546 U.S.

49 (2005). 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:

The burdens of pleading and proof with regard to most facts have been and

should be assigned to the plaintiff who generally seeks to change the present

state of affairs and who therefore naturally should be expected to bear the risk

of failure of proof or persuasion.

At the same time, the Supreme Court also recognized The ordinary defaultrule, 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. See, e.g., FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948).

Under some circumstances this Court has even placed the burden of

persuasion over an entire claim on the defendant. See Alaska Dept. of

Environmental Conservation v. EPA, 540 U.S. 461 (2004). Nonetheless,


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[a]bsent some reason to believe that Congress intended otherwise, therefore,

[the Supreme Court] will conclude that the burden of persuasion lies where it

usually falls, upon the party seeking relief.

Science and other uses

Outside a legal context, "burden of proof" means that someone suggesting a

new theory or stating a claim must provide evidence to support it: it is not

sufficient to say "you can't disprove this." Specifically, when anyone is

making a bold claim, either positive or negative, it is not someone else's

responsibility to disprove the claim, but is rather the responsibility of the

person who is making the bold claim to prove it. In short, X is not proven

simply because "not X" cannot be proven (see negative proof).

Taken more generally, the standard of proof demanded to establish any

particular conclusion varies with the subject under discussion. Just as there is

a difference between the standard required for a criminal conviction and in a

civil case, so there are different standards of proof applied in many other areas

of life.

The less reasonable a statement seems, the more proof it requires. The

scientific consensus on cold fusion is a good example. The majority believes

this can not really work, because believing that it would do so would force the

alteration of a great many other tested and generally accepted theories about

nuclear physics.

Types of Burden

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