LAW OF EVIDENCE

BURDEN OF PROOF

Renard shija Mzumbe university LL.B II 2021-22

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BURDEN OF PROOF
Burden of proof (Latin, onus probandi) is the obligation to prove allegations which are
presented in a legal action. The Latin maxim necessitas probandi incumbit ei qui agit
explains the rule that "the necessity of proof lies with he who complains." For example, a
person has to prove that someone is guilty or not guilty (in a criminal case) or liable or
not liable (in a civil case) depending on the allegations. More colloquially, burden of
proof refers to an obligation in a particular context to defend a position against a prima
facie other position.

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. 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 non-existence of all affirmative defence(s) is not
constitutionally required of the prosecution (432 U.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.
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, ie 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: "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
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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 .70 and .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, 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.
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/she is not
free to leave (reasonable suspicion required) →arrest (probable cause required).

Probable cause

Probable cause is a relatively low standard of proof, 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 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." Courts vary when determining what constitutes a "fair
probability," some say 30%, others 40%, others 51%.

Balance of probabilities

Also known as the "preponderance of evidence", this 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% chance that the
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proposition is true. Lord Denning in Miller v. Minister of Pensions [1947] 2 All ER 372
described it simply as "more probable than not".

Clear and convincing evidence

"Clear and convincing evidence" is the intermediate 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

This is the standard required by the prosecution in most criminal cases within an
adversarial system. 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 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. In the United States, it is usually reversible error to instruct a jury that
they should find guilt on a certain percentage of certainty (such as 90% certain). Usually,
reasonable doubt is defined as "any doubt which would make a reasonable person hesitate
in the most important of his or her affairs."

Examples
Criminal law

In most western countries, criminal cases place the burden of proof on the prosecutor -
sometimes referred to by the latin legal expression "ei incumbit probatio qui dicit, non
que negat" (the burden of proof rests on who asserts, not on who denies). The principle
that it should be is known as the presumption of innocence, 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 carried 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
o Burden of production: P has to show some evidence that D had committed
murder
▪ e.g. witness, forensic evidence, autopsy report
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▪ 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
o 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 some countries (Mexico and Mainland China are well-known examples), criminal law
reverses the burden of proof. The defendant is presumed guilty until proven innocent.
This type of standard is considered so manifestly unfair in most cases that countries that
use it are considered totalitarian.

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.

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).

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.

A classic example comes from Criswell's final speech at the end of Ed Wood's Plan 9
from Outer Space: "My friends, you have seen this incident, based on sworn testimony.
Can you prove that it didn't happen?". Considering that the incident in question involved
grave robbers from space, the burden of proof is being incorrectly assigned.
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A humorous example comes from the television series Futurama during the opening
credit gag for the episode Obsoletely Fabulous states regarding the premise of the show;
'You can't prove it won't happen'.

Burden of proof
In a court hearing or trial, the side with the burden of proof is the side that has the task of
proving the facts to the satisfaction of the judge or jury. The rules about which side bears
the burden of proof have to be considered for both criminal and civil actions.

In English criminal law, the burden of Proof generally lies with the prosecution -- it has
to prove all the facts that establish the guilt of the accused, except those which are
assumed to be obvious (see Judicial Notice). The Standard of Proof is, nearly always,
``beyond reasonable doubt''.

If the prosecution does not discharge the burden of proof, to the requisite standard, the
accused will be acquitted. See R V Woolmington 1935, for a textbook example.

However, some statutory and common-law provisions have the effect of shifting the
burden of proof to the defendant. For example, the prosecution does not have a duty to
prove that the defendant is sane, or was incapable of moral reasoning. If these points are
used as a defense then the defendant will generally have to prove them, at least to the
`balance of probabilities' standard (see Reverse Burden Of Proof). In addition, there are
many cases in which the defendant may carry an Evidential Burden; that is, the defendant
will have to adduce evidence to support his case, although he may not be required to
prove it.

In a civil hearing, the side the brings the action usually has the burden of proof overall,
although a more accurate rule is ``he who asserts must prove''.

In some trials or hearings the determination of burden of proof is straightforward. More

often, however, there are subsidiary matters to the main facts in issue, and the question
then arises who has the burden of proving those. There are many technicalities
concerning the burden of proof in such cases, some of which are created by statute and
some of which have been developed by the courts over a period of time. What follow is a
few examples; you should not assume that this is an inclusive list, by any means.

• in a criminal trial, the side that wishes to adduce evidence has the burden of proving
that it is admissible (see Admissibility of Evidence). For example, if the defendant wishes
to adduce evidence that might be regarded as hearsay, and this evidence is contested by
the prosecution, the defence will have to prove that the evidence is not hearsay, or that it
falls within one of the exceptions to the hearsay rule.
• in a criminal trial, if the defendant argues that his confession was extracted under
duress, then s.76 of PACE imposes on the prosecution the duty of proving that this was
not the case, that the confession was made freely.
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• in a civil action for breach of contract, a party who wishes to rely on an Exclusion
Clause -- whether that party is the claimant or the defendant -- must show that the clause
was validly incorporated into the contract.
• In an action in tort, it is now generally accepted that a plea of Res Ipsa Loquitur does
not have the effect of shifting the burden of proof to the defendant. It does, however,
create for the defendant an obligation to raise some evidence to show that he was not at
fault.

What is the burden of proof in a criminal case versus a civil case?

There are different standards in different circumstances. For example, in criminal cases,
the burden of proving the defendant's guilt is on the prosecution, and they must establish
that fact beyond a reasonable doubt. In civil cases, the plaintiff has the burden of
proving his case by a preponderance of the evidence.

What is the difference between criminal and civil law?

Criminal law and civil law differ with respect to how cases are initiated (who may bring
charges or file suit), how cases are decided (by a judge or a jury), what kinds of
punishment or penalty may be imposed, what standards of proof must be met, and what
legal protections may be available to the defendant.

What is the difference between the standard of proof and the burden of proof?
Burden of Proof. In each case, one side has the “burden of proof.” Having this burden
means the party must prove its case to the “trier of fact”—judge or jury, whoever is
weighing the evidence. ... For example, in a criminal trial, the prosecution has the
burden of proving the defendant committed a crime.

What is the difference between the burden of proof and standard of proof?
A standard of proof determines the amount of evidence the plaintiff or defendant needs
to provide in order for the jury to reach a particular determination. In most civil cases, the
burden of persuasion that applies is called “a preponderance of the evidence.”

What is the difference between beyond a reasonable doubt and on the balance of
probabilities?
The criminal standard is proof beyond a reasonable doubt. This article deals with civil
standards of proof. Saying something is proven on a balance of probabilities means that
it is more likely than not to have occurred. It means that it is probable, i.e., the
probability that some event happens is more than 50%.