Professional Documents
Culture Documents
needed] in 1970. In the attempt, she presented a trial to groups of students. Half
There are generally two broad types of burdens:
of the students decided the guilt or innocence of the defendant. The other half
A "legal burden" or a "burden of persuasion" is an obligation that remains
recorded their perceived likelihood, given as a percentage, that the defendant
on a single party for the duration of the claim. Once the burden has been entirely
committed the crime. She then matched the highest likelihoods of guilt with the
discharged to the satisfaction of the trier of fact, the party carrying the burden
guilty verdicts and the lowest likelihoods of guilt with the innocent verdicts.
will succeed in its claim. For example, the presumption of innocence places a
From this, she gauged that the cutoff for reasonable doubt fell somewhere
legal burden upon the prosecution to prove all elements of the offence (generally
between the highest likelihood of guilt matched to an innocent verdict and the
beyond a reasonable doubt) and to disprove all the defences except for
lowest likelihood of guilt matched to a guilty verdict. From these samples,
affirmative defenses in which the proof of nonexistence of all affirmative
Simon concluded that the standard was between 0.70 and 0.74.[2]
defence(s) is not constitutionally required of the prosecution.[1]
Standards for searches, arrests or warrants
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 Reasonable suspicion
submit evidence that the court will consider prima facie evidence of some state Reasonable suspicion is a low standard of proof in the U.S. to determine
of affairs. This creates an evidentiary burden upon the opposing party to present whether a brief investigative stop or search by a police officer or any
evidence to refute the presumption. government agent is warranted. It is important to note that this stop and/or
Standard of proof 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
The "standard of proof" is the level of proof required in a legal action to
cause) would be required to warrant a more thorough stop/search. In Terry
discharge the burden of proof, which is to convince the court that a given
v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court ruled that
proposition is true. The degree of proof required depends on the circumstances
reasonable suspicion requires specific, articulable, and individualized
of the proposition. Typically, most countries have two levels of proof or the
suspicion that crime is afoot. A mere guess or "hunch" is not enough to
balance of probabilities: preponderance of evidence - (lowest level of proof,
used mainly in civil trials) beyond a reasonable doubt - (highest level of proof, constitute reasonable suspicion.
prove that there is more than a reasonable doubt.[5]If anything the state’s insufficiency of the evidence." This phrase is rich with possibilities for
responsibility is to prove that there is less than a reasonable doubt.[6] The concocting doubt – Where are the fingerprints? Where is the DNA evidence?
word “beyond” in the phrase beyond a reasonable doubt means “to the Where are the other officers who assisted with the arrest? These arguments
exclusion of.”[7] That is the state must exclude any and all reasonable doubt invite, actually require that the jury engage in speculation – something a jury
as to the defendant’s guilt. Simply put, the phrase means that if a juror has a is specifically instructed not to do. An example, a person enters a store. The
reasonable doubt it is her duty to return a verdict of not guilty.[8] On the other clerk who is talking to her friend on the telephone sees the man. She tells her
hand, if a juror does not have a reasonable doubt then the state has met its friend that the man appeared to be casing the place and asks her friend to call
burden of proof and it is the juror’s duty to return a verdict of guilty.[9] 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
mask, re-enters the store and tells the clerk to give it up. The clerk does as she I wonder what that would have shown?" A jury properly draw conclusion
is told and put the contents of the till into a bag which she hands to the man. based on the evidence and inferences drawn from the evidence. The strength
The man then leaves the store. As he is running to his car the police arrive. of the conclusions is based on the persuasive force of the evidence. With one
The man flees from the scene with the police officers in hot pursuit. As he exception, "Lack or insufficiency" refers to the convincing force of the
runs the man tosses the bag, gun and mask. He is caught shortly thereafter, evidence presented. The exception is the missing witness rule.
returned to the store and is positively identified by the clerk as the man who
The missing witness rule is:
cased the store and then robbed her. The bag is retrieved and the money in the
"The failure to call a witness raises a presumption of inference that the
bag exactly matches to the penny the amount taken from the register. At the
testimony of such person would be unfavorable to the party failing to call him,
trial, the defense attorney asks the lead investigator whether hair samples were
but there is no such presumption or inference where the witness is not
taken from the mask and submitted to the lab for analysis. The investigator
available, or where his testimony is unimportant or cumulative, or where he is
says no. During closing arguments the defense attorney conveniently ignores
equally available to both sides."[13]
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 "The reasonable-doubt standard plays a vital role in the American scheme of
evidence" of the defendant's guilt or innocence. Is the absence of the hair criminal procedure. It is a prime instrument for reducing the risk of
evidence what the phrase “lack of insufficiency of the evidence” refers to. No. convictions resting on factual error. The standard provides concrete substance
The phrase refers to the convincing force of the evidence presented. The for the presumption of innocence – that bedrock "axiomatic and elementary"
presence or absence of reasonable doubt is to be determined by the evidence principle whose "enforcement lies at the foundation of the administration of
presented at trial not what might have been presented. There is a standard our criminal law."[14] . Proof beyond a reasonable doubt did not become the
objection- Calls for speculation – that is exactly what the defense attorney is accepted standard in criminal cases until the middle of the nineteenth century.
asking the jury to do, to speculate. Not simple speculation but a series of [15] Proof beyond a reasonable doubt was not the standard by which guilt was
"what ifs." What if a hair sample had been found, what if the hair sample had determined when the Bill of Rights was drafted in 1789.[16] This may explain
been sent to the lab for DNA analysis, what if he DNA profile had not the absence of the phrase in the constitution. Nor was it an element of due
Remember that the state’s duty is to eliminate any reasonable doubt, any Attempts to quantify the burden of proof are exercises in futility. It is more a
logical explanation that arises from the evidence. The defense's argument is qualitative than quantitative concept. As Rembar notes, "Proof beyond a
not a proper argument. It is a “tool of logical inversion”[12] All the evidence reasonable doubt is a quantum without a number."[17]
would compel one to say the defendant is guilty. However, the defendant
Non-legal Standards
wants the jurors to think, "but still there is that missing hair analysis evidence.
Beyond the shadow of a doubt
Main article: Beyond the shadow of a doubt 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
Beyond the shadow of a doubt is the most strict standard of proof. It requires
presumed innocent
that there be no doubt as to the issue. Widely considered an impossible
Burden of persuasion: if at the close of evidence, the jury cannot decide if
standard, a situation stemming from the nature of knowledge itself, it is
P has established with relevant level of certainty that D had committed
valuable to mention only as a comment on the fact that evidence in a court
murder, the jury must find D not guilty of the crime of murder
never need reach this level. This phrase, has, nonetheless, come to be
Measure of proof: P has to prove every element of the offence beyond a
associated with the law in popular culture.
reasonable doubt, but not necessarily prove every single fact beyond a
Examples reasonable doubt.
Criminal law In other countries, criminal law reverses the burden of proof, and there is a
In the West, criminal cases usually place the burden of proof on the prosecutor presumption of guilt.
(expressed in the Latin brocard ei incumbit probatio qui dicit, non que negat, However, in England and Wales, the Magistrates' Courts Act 1980, s.101
"the burden of proof rests on who asserts, not on who denies"). This principle stipulates that where a defendant relies on some "exception, exemption,
is known as the presumption of innocence, and is summed up with "innocent proviso, excuse or qualification" in his defence, the legal burden of proof as to
until proven guilty," but is not upheld in all legal systems or jurisdictions. that exception falls on the defendant, though only on the balance of
Where it is upheld, the accused will be found not guilty if this burden of proof probabilities. For example, a person charged with being drunk in charge of a
is not sufficiently shown by the prosecution. motor vehicle can raise the defence that there was no likelihood of his driving
For example, if the defendant (D) is charged with murder, the prosecutor (P) while drunk.[19] The prosecution have the legal burden of proof beyond
bears the burden of proof to show the jury that D did murder someone. reasonable doubt that the defendant exceeded the legal limit of alcohol and
Burden of proof: P was in control of a motor vehicle. Possession of the keys is usually sufficient
Burden of production: P has to show some evidence that D had committed 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
murder. The United States Supreme Court has ruled that the Constitution
the balance of probabilities that he was not likely to drive.[20]
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 Similar rules exist in trial on indictment. Some defences impose an evidential
course it is up to the jury itself to decide if they are, in fact, convinced of burden on the defendant which, if met, imposes a legal burden on the
guilty beyond a reasonable doubt.[18] If the judge finds there is not enough prosecution. For example, if a person charged with murder pleads the right of
evidence under the standard, the case must be dismissed (or a subsequent self-defense, the defendant must satisfy the evidential burden that there are
guilty verdict must be vacated and the charges dismissed). e.g. witness, some facts suggesting self-defence. The legal burden will then fall on the
prosecution to prove beyond reasonable doubt that the defendant was not 2486, at 275 (3d ed. 1940). In Keyes, the Supreme Court held that if “school
acting in self-defence.[20] authorities have been found to have practiced purposeful segregation in part of
In 2002, such practice in England and Wales was challenged as contrary to the a school system,” the burden of persuasion shifts to the school to prove that it
European Convention on Human Rights (ECHR), art.6(2) guaranteeing right did not engaged in such discrimination in other segregated schools in the same
to a fair trial. The House of Lords held that such burdens were not contrary to system.
the ECHR:[20][21] In Director, Office of Workers’ Compensation Programs v. Greenwich
A mere evidential burden did not contravene art.6(2); A legal/ persuasive Collieries, 512 U.S. 267 (1994), the Supreme Court explained that burden of
burden did not necessarily contravene art.6(2) so long as confined within proof is ambiguous because it has historically referred to two distinct burdens:
reasonable limits, considering the questions: the burden of persuasion, and the burden of production.
What must the prosecution prove to transfer burden to the defendant? The Supreme Court discussed how courts should allocate the burden of proof
Is the defendant required to prove something difficult or easily within his (i.e., the burden of persuasion) in Schaffer ex rel. Schaffer v. Weast, 546 U.S.
access? 49 (2005). The Supreme Court explained that if a statute is silent about the
What is threat to society that the provision is designed to combat? burden of persuasion, the court will “begin with the ordinary default rule that
Civil law 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
In civil law cases, the "burden of proof" requires the plaintiff to convince the
(5th ed. 1999), which states:
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 The burdens of pleading and proof with regard to most facts have been and
cause of action, in order to recover. 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
The burden of proof must be distinguished from the "burden of going
of failure of proof or persuasion.
forward," which simply refers to the sequence of proof, as between the
plaintiff and defendant. The two concepts are often confused. At the same time, the Supreme Court also recognized “The ordinary default
rule, of course, admits of exceptions.” “For example, the burden of persuasion
Decisions by the U.S. Supreme Court
as to certain elements of a plaintiff's claim may be shifted to defendants, when
In Keyes v. Sch. Dist. No. 1, 413 U.S. 189 (1973), the United States Supreme
such elements can fairly be characterized as affirmative defenses or
Court stated: “There are no hard-and-fast standards governing the allocation
exemptions. See, e.g., FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948).
of the burden of proof in every situation. The issue, rather, ‘is merely a
Under some circumstances this Court has even placed the burden of
question of policy and fairness based on experience in the different
persuasion over an entire claim on the defendant. See Alaska Dept. of
situations.’” For support, the Court cited 9 John H. Wigmore, Evidence §
Environmental Conservation v. EPA, 540 U.S. 461 (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.”