Burden of proof (Latin, onus probandi) is the obligation to prove allegations which are presented in a legal action. The Law of evidence governs the use of Testimony (eg oral or written statements such as an Affidavit) and exhibits (e Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive "Testify" redirects here For other uses see Testify (disambiguation and Testimony (disambiguation. Documentary evidence is any evidence introduced at a trial in the form of Documents. Physical evidence is any evidence introduced in a trialin the form of a physical object intended to prove a fact in issue based on its demonstrable physical characteristics Digital evidence or electronic evidence is any probative information stored or transmitted in Digital form that a party to a Court case may use at Exculpatory evidence is the evidence favorable to the Defendant in a criminal trial, which clears or tends to clear the defendant of Guilt. This article is about the legal concept For scientific evidence in pure science see Scientific evidence. Demonstrative evidence is evidence in the form of a Representation of an object Real evidence is a type of Physical evidence and consists of objects that were involved in a case or actually played a part in the incident or transaction in question Eyewitness identification evidence is the leading cause of Wrongful conviction in the United States Lies, on their own are not sufficient evidence of a crime However Lies may indicate that the defendant knows he is guilty and the prosecution may rely on the fact that the Relevance, in the Common law of evidence, is the tendency of a given item of evidence to prove or disprove one of the legal elements of the case or to have Probative In Law, a foundation is sufficient preliminary evidence of the authenticity and relevance for the admission of material evidence in A subsequent remedial measure is a term used in the Law of evidence in the United States to describe an improvement or repair taken following an injury Character evidence is a term used in the Law of evidence to describe any testimony or document submitted for the purpose of proving that a person acted in a particular Habit evidence is a term used in the Law of evidence in the United States to describe any evidence submitted for the purpose of proving that a person In the law of Evidence, similar fact evidence (or the similar fact principle) establishes the conditions under which factual evidence of past misconduct of accused Authentication, in the Law of evidence, is the process by which Documentary evidence and other Physical evidence is proven to be genuine and Chain of custody refers to the chronological documentation and/or Paper trail, showing the seizure custody control transfer analysis and disposition of Evidence Judicial Notice is a rule in the Law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known that it The best evidence rule is a Common law rule of evidence which can be traced back at least as far as the 18th century A self-authenticating document, under the Law of evidence in the United States, is any Document that can be admitted into evidence at a trial An ancient document, in the Law of evidence, refers to both a means of authentication for a piece of Documentary evidence, and an exception to the A witness is someone who has firsthand knowledge about a Crime or dramatic event through their Senses (e In American law competence concerns the mental capacity of an individual to participate in legal proceedings Under Common law, privilege is a term describing a number of rules excluding evidence that would be adverse to a fundamental principle or relationship if it were disclosed The Direct Examination is a crucial part of the case Direct examination (also called examination in chief is the questioning of a witness by the party who called him or her in a See Structure of policy debate for cross-examination in Policy debate. Witness impeachment, in the Law of evidence, is the process of calling into question the credibility of an individual who is testifying in a trial. A recorded recollection, in the Law of evidence, is an exception to the Hearsay rule which allows a witness to testify to the accuracy of a recording or An expert witness is a Witness, who by virtue of Education, Training, Skill, or Experience, is believed to have Knowledge A dead man statute is a statute designed to prevent Perjury in a Civil case by prohibiting a witness who is an interested party from testifying about communications History of the rule The rules of hearsay began to form properly in the late seventeenth century and had become fully established by the early nineteenth century Hearsay is the legal term that describes statements made outside of court or other judicial proceedings In the law of criminal evidence a confession means a statement by a suspect in crime which is adverse to that person The business records exception to the US hearsay rule is based on Rule 803(6 of the Federal Rules of Evidence (FRE An excited utterance, in the Law of evidence, is a statement made by a person in response to a startling or shocking event or condition In the Law of evidence, the dying declaration is Testimony that would normally be barred as Hearsay but may nonetheless be admitted as evidence Background The party admission, in the Law of evidence, is a type of statement that appears to be hearsay (an out of court statement but is An ancient document, in the Law of evidence, refers to both a means of authentication for a piece of Documentary evidence, and an exception to the Declarations against interest are an exception to the rule on hearsay in which a person's statement may be used where generally the content of the statement is so prejudicial A present sense impression, in the Law of evidence, is a statement made by a person (the Declarant) that conveys his or her sense of the state of an This article is for the legal term 'Res Gestae' For the article on the record of the accomplishments of the first Roman emperor Augustus see the article for Res Gestae Divi A learned treatise, in the Law of evidence, is a text that is sufficiently authoritiative in its field to be admissible as evidence in a Court in support In the law of evidence, an implied assertion is a statement or conduct that infers some fact A contract is an exchange of promises between two or more parties to do or refrain from doing an act which is enforceable in a court of law Tort law is the name given to a body of law that creates and provides remedies for civil wrongs that do not arise out of Contractual duties Property law is the area of Law that governs the various forms of Ownership in Real property (land as distinct from personal or movable possessions In Common law, a will or testament is a document by which a person (the Testator) regulates the rights of others over his or her Property The law of trusts and estates is generally considered the body of Law which governs the management of personal affairs and the Disposition of Property of The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different Jurisdictions whose common characteristic is the potential Latin ( lingua Latīna, laˈtiːna is an Italic language, historically spoken in Latium and Ancient Rome. An allegation (also called adduction) is a statement of a Fact by a party in a Pleading, which the party claims it will prove Law is a system of rules enforced through a set of Institutions used as an instrument to underpin civil obedience politics economics and society Under the Latin maxim necessitas probandi incumbit ei qui agit, the ordinary rule is that "the necessity of proof lies with he who complains. " For example, a person has to prove that someone is guilty (in a criminal case) or liable (in a civil case) depending on the allegations; a person is not required to prove his or her own innocence, it is rebuttably presumed. More colloquially, burden of proof refers to an obligation in a particular context to defend a position against a prima facie other position. Prima facie is a Latin expression meaning "on its first appearance" or "by first instance"
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Types of burden
There are generally three 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. A trier of fact (or finder of fact) is a person who determines facts in a legal proceeding 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 (432 U. The presumption of innocence being innocent until proven guilty is a legal Right that the Accused in Criminal trials has An affirmative defense is a category of defense used in Litigation between private parties in Common law Jurisdictions, or more familiarly S. 197).
- 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 proof of some state of affairs. Prima facie is a Latin expression meaning "on its first appearance" or "by first instance" This creates an evidentiary burden upon the opposing party to present evidence to refute the presumption.
- A "tactical burden" is an obligation similar to an evidentiary burden. Presented with certain evidence, the Court has the discretion to infer a fact from it unless the opposing party can present evidence to the contrary.
Standard of proof
The "standard of proof" is the level of proof required in a legal action to discharge the burden of proof, that is to convince the court that a given proposition is true. The Law of evidence governs the use of Testimony (eg oral or written statements such as an Affidavit) and exhibits (e A court is a forum used by a power base to adjudicate disputes and dispense civil, labour administrative and criminal Justice under its The degree of proof required depends on the circumstances of the proposition. Typically, most countries have two levels of proof: "the balance of probabilities" (BOP), called the "preponderance of evidence" in the U. S. , (which is the lowest level, generally thought to be greater than 50%, although numeric approximations are controversial) and "beyond a reasonable doubt" (which is the highest level, but defies numeric approximation). In addition to these, the U. S. introduced a third standard called "clear and convincing evidence", (which is the medium level of proof).
The first attempt to quantify reasonable doubt was made by Simon 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. [1]
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.
Reasonable suspicion
Reasonable suspicion is a low standard of proof in the U. S. to determine whether a brief investigative stop or a brief search by a police officer or any government agent is warranted. In Terry v. Ohio, , the United States Supreme Court ruled that reasonable suspicion requires specific, articulable, and individualized suspicion that crime is afoot. Terry v Ohio, 392 US 1 ( 1968) was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition The Supreme Court of the United States is the highest judicial body in the United States and leads the federal judiciary. A mere guess or "hunch" is not enough to constitute reasonable suspicion. As a result of the low threshold, the extent of intrusiveness of the search and/or seizure allowed is lower than the extent of intrusiveness allowed when a government agent has probable cause to suspect that evidence of a crime will be found.
A good illustration of this is the continuum of a typical police/citizen interaction:
Consensual encounter between officer and citizen (no level of suspicion required) →a stop initiated by the officer that would cause a reasonable person to feel that he or she is not free to leave (reasonable suspicion required) →arrest (probable cause required).
Probable cause for arrest
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. In United States Criminal law, probable cause refers to the standard by which a Police officer has the right to make an Arrest, conduct It is also used by grand juries to determine whether to issue an indictment. In the Common law, a grand jury is a type of Jury which determines whether there is enough evidence for a trial. In the Common law legal system an indictment (ɪnˈdaɪtmənt (in-DITE-mint is a formal accusation of having committed a criminal offense In the 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, , 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. The Drug Enforcement Administration ( DEA) is a United States Department of Justice Law enforcement agency tasked with combating drug smuggling and Courts vary when determining what constitutes a "fair probability," some say 30%, others 40%, others 51%.
Balance of probabilities
Balance of probabilities, also known as the preponderance of the evidence, is the standard required in most civil cases. Civil law, as opposed to Criminal law, refers to that branch of Law dealing with disputes between Individuals and/or Organizations, in which The standard is met if the proposition is more likely to be true than not true. Probability is the likelihood or chance that something is the case or will happen Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true. Lord Denning, in Miller v. Alfred Thompson 'Tom' Denning Baron Denning, OM, PC ( 23 January, 1899 &ndash 5 March, 1999) was an English Minister of Pensions,[2] 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. Civil procedure is the body of law that sets out the process that Courts will follow when hearing cases of a civil nature (a " Civil action " as opposed to 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. A trier of fact (or finder of fact) is a person who determines facts in a legal proceeding 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
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. Reasonable Doubt is the debut album of East Coast Rapper Jay-Z, released June 25 1996 on Roc-A-Fella Records in the United States The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different Jurisdictions whose common characteristic is the potential 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. The reasonable person standard is often used legal term that originated in the development of the Common law. There can still be a doubt, but only to the extent that it would not affect a "reasonable person's" belief that the defendant 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. Jurisprudence is the Theory and Philosophy of Law. Scholars of jurisprudence or legal philosophers hope to obtain a deeper understanding of the nature
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"). The term Western world, the West or the Occident ( Latin: occidens -sunset -west as distinct from the Orient) can have multiple meanings The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different Jurisdictions whose common characteristic is the potential The prosecutor is the chief legal representative of the prosecution in countries with either the Common law Adversarial system, or the civil law A number of Latin terms are used in legal terminology and Legal maxims This is a partial list of these "legal Latin" terms which are wholly or substantially A brocard is a legal principle expressed in Latin (and often derived from past legal authorities which is traditionally used to concisely express a wider legal This principle is known as the presumption of innocence, but is not upheld in all legal systems or jurisdictions. The presumption of innocence being innocent until proven guilty is a legal Right that the Accused in Criminal trials has In Law, jurisdiction (from the Latin ius iuris meaning "law" and dicere meaning "to speak" is the practical Authority 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 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 of course it is up to the jury itself to decide if they are, in fact, convinced of guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (1979). 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. A witness is someone who has firsthand knowledge about a Crime or dramatic event through their Senses (e Forensic Identification is the application of forensic science and technology to identify specific objects from the Trace evidence they leave often at a Crime An autopsy, also known as a post-mortem examination, necropsy, or obduction, is a Medical procedure that consists of a thorough Examination
- 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 of course it is up to the jury itself to decide if they are, in fact, convinced of guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (1979). 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).
In other countries, criminal law reverses the burden of proof, and there is a presumption of guilt. The presumption of innocence being innocent until proven guilty is a legal Right that the Accused in Criminal trials has
However, in England and Wales, the Magistrates' Courts Act 1980, s. History The Roman occupation of Britain was the first period in which the area of present-day England and Wales was administered as a single unit (with the exception The Magistrates' Courts Act 1980 is an Act of Parliament codifying the procedures applicable in magistrates' courts in the United Kingdom and largely replaces the 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. Drink driving law in the United Kingdom governs the ability to drive under the influence of alcohol and other intoxicating substances [3] 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. [4]
Similar rules exist in trial on indictment. In the Common law legal system an indictment (ɪnˈdaɪtmənt (in-DITE-mint is a formal accusation of having committed a criminal offense 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. Murder is the unlawful killing of another human person with Malice aforethought, as defined in Common Law countries The right of self-defense (also called alter ego defense, defense of others, defense of a third person) is the right for civilians acting on their The legal burden will then fall on the prosecution to prove beyond reasonable doubt that the defendant was not acting in self-defence. [4]
In 2002, such practice in England and Wales was challenged as contrary to the European Convention on Human Rights (ECHR), art. See also 2002 (disambiguation Year 2002 ( MMII) was a Common year starting on Tuesday of the Gregorian calendar. The Convention for the Protection of Human Rights and Fundamental Freedoms (also called the "European Convention on Human Rights" and "ECHR" was adopted under the 6(2) guaranteeing right to a fair trial. The House of Lords held that such burdens were not contrary to the ECHR:[4][5]
- A mere evidential burden did not contravene art. The House of Lords, in addition to having a legislative function has a judicial function as a Court of last resort within the United Kingdom. 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. Civil law, as opposed to Criminal law, refers to that branch of Law dealing with disputes between Individuals and/or Organizations, in which 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
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 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. 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, 494(2004). " Nonetheless, "[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.
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. "
In Keyes v. Sch. Dist. No. 1, 413 U. S. 189(1973), the 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 persuassion shifts to the school to prove that it did not engaged in such discrimination in other segregated schools in the same system.
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, 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). This article is about a logical fallacy The term "negative proof" can also refer to a Proof of impossibility.
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. Consensus has two common meanings One is a general agreement among the members of a given group or Community, each of which exercises some discretion in Cold fusion, sometimes called low energy nuclear reactions (LENR or condensed matter nuclear science, is a set of effects reported in controversial laboratory experiments 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. Nuclear physics is the field of Physics that studies the building blocks and interactions of Atomic nuclei.
References
- ^ Distributions of Interest for Quantifying Reasonable Doubt and Their Applications. Retrieved on 2007-01-14. Year 2007 ( MMVII) was a Common year starting on Monday of the Gregorian calendar in the 21st century. Events 1129 - Formal approval of the Order of the Templar at the Council of Troyes.
- ^ Miller v. Minister of Pensions [1947] 2 All ER 372
- ^ Road Traffic Offenders Act 1988, s. 5(2)
- ^ a b c Herring, J. (2004). Criminal Law: Text, Cases, and Materials. Oxford: Oxford University Press, 58-64. ISBN 0-19-876578-9.
- ^ R v. DPP, Ex Parte Kebeline [1999] UKHL 43
Bibliography
- Cooper, S. (2003). "Human Rights and Legal Burdens of Proof". Web Journal of Current Legal Issues 3.
External links
See also
- Probative or Probate
- Scientific method
- Occam's razor
- Burden of proof (logical fallacy)
- Statistical hypothesis testing
Dictionary
burden of proof
-noun
- (law) The duty of a party in a legal proceeding to prove an assertion of fact; it includes both the burden of production and the burden of persuasion.
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