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Encyclopedia > Burden of proof
Evidence
Part of the common law series
Types of evidence
Testimony  · Documentary evidence
Physical evidence  · Digital evidence
Exculpatory evidence  · Scientific evidence
Demonstrative evidence
Relevance
Burden of proof
Laying a foundation
Subsequent remedial measure
Character evidence  · Habit evidence
Authentication
Chain of custody
Judicial notice  · Best evidence rule
Self-authenticating document
Ancient document
Witnesses
Competence  · Privilege
Direct examination  · Cross-examination
Impeachment  · Recorded recollection
Expert witness  · Dead man statute
Hearsay (and its exceptions)
Excited utterance  · Dying declaration
Party admission  · Ancient document
Declaration against interest
Present sense impression  · Res gestae
Learned treatise
Other areas of the common law
Contract law  · Tort law  · Property law
Wills and Trusts  · Criminal law

In the common law, burden of proof is the obligation to prove allegations which are presented in a legal action. More colloquially, burden of proof refers to an obligation in a particular context to defend a position against a prima facie other position. Image File history File links Scale_of_justice. ... The law of evidence governs the use of testimony (eg. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... In law and in religion, testimony is a solemn attestation as to the truth of a matter. ... Documentary evidence is any evidence introduced at a trial in the form of documents. ... Physical evidence is any evidence introduced in a trial in 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 trial. ... Exculpatory evidence is the evidence favorable to the defendant in a criminal trial, which clears or tends to clear the defendant of guilt. ... The scientific method or process is fundamental to the scientific investigation and acquisition of new knowledge based upon physical evidence. ... Demonstrative evidence is evidence used to help the fact-finder gain context for the facts of the case. ... 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 value to make one of the elements of the case likelier or not. ... In law, to lay a foundation means to provide sufficient evidence of the authenticity and relevance for the admission of the testimony of a witness, documentary evidence, or other piece of evidence. ... A subsequent remedial measure is a term used in the law of evidence (law) in the United States to describe an improvement or repair made to a structure following an injury caused by the condition of that structure. ... Character evidence is a term used in the law of evidence in the United States to describe any testimony or document submitted for the purpose of proving that a person acted in a particular way on a particular occasion based on the character or disposition of that person. ... 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 acted in a particular way on a particular occasion based on that persons tendancy to reflexively respond to a particular situation... Authentication, in the law of evidence, is the process by which documentary evidence and other physical evidence is proven to be genuine, and not a forgery. ... The chain of custody is a concept in jurisprudence which applies to the handling of evidence and its integrity. ... Judicial Notice is a rule 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 is cannot be refuted. ... The best evidence rule is a rule of evidence in the United States that requires that when writings are introduced as evidence in a trial, the original writing must be produced unless the party can account satisfactorily for its absence. ... 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 without any proof being submitted to support the claim that the document is what it appears to be. ... 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 hearsay rule. ... This article is about witnesses in law courts. ... In law, competence is conerns the mental capacity of a individual to participate in legal proceedings. ... A privilege—etymologically private law or law relating to a specific individual—is an honour, or permissive activity granted by another person or a government. ... Direct examination (also called examination in chief) is the questioning of a witness by the party who called him or her, in a trial in a court of law. ... In law, cross-examination is the interrogation of a witness called by ones opponent. ... 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 a an exception to the hearsay rule which allows a witness to testify to the accuracy of a recording or documentation of their own out-of-court statement based on their recollection of the circumstances under which the statement was recorded... An expert witness is a witness, who by virtue of education, or profession, or experience, is believed to have special knowledge of his subject beyond that of the average person, sufficient that others may officially (and legally) rely upon his opinion. ... 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 or transactions with a decedent, unless there is a waiver. ... Hearsay in its most general and oldest meaning is a term used in the law of evidence to describe an out of court statement offered to establish the facts asserted in that statement. ... An excited utterance, in the law of evidence, is a statement made by a person in response to a shocking event. ... A dying declaration is a term used in the law of evidence to signify that testimony that would normally be barred as hearsay may nonetheless be admitted as evidence in certain kinds of cases because it constituted the last words of a dying person. ... A party admission, in the law of evidence, is any statement made by a declarant who is a party to a lawsuit, which is offered as evidence against that party. ... 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 hearsay rule. ... Hearsay in its most general and oldest meaning is a term used in the law of evidence to describe an out of court statement offered to establish the facts asserted in that statement. ... A present sense impression, in the law of evidence, is a statement made by a person that conveys their sense of the state of certain things at the time the statement was made. ... 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 Augusti. ... 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 of the contentions made therein. ... All the textbooks define a contract as either a promise or an agreement that is enfored or recognised by the law. ... In the common law, a Tort is a civil wrong, other than a breach of contract, for which the law provides a remedy. ... 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) and in personal property, within the common law legal system. ... In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his property or family after death. ... 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 an individual in anticipation and the event of such persons incapacity or death, also known as the law of successions in civil law. ... Criminal law (also known as penal law) is the body of common law that punishes criminals for committing offences against the state. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... Prima facie (PRY-muh-FAY-shee; -shuh) is a Latin expression meaning at first sight, used in common law jurisdictions to denote evidence that is sufficient, if not rebutted, to prove a particular proposition of fact. ...

Contents


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 their claim. For example the presumption of innocence places a legal burden upon the prosecution to prove all elements of the offence and to disprove all the defences. A trier of fact is the person or group of persons in a trial who make findings of fact as opposed to rulings of law. ... Presumption of innocence is a legal right that the accused enjoys in criminal trials in many modern nations. ...


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 Prima facie (PRY-muh-FAY-shee; -shuh) is a Latin expression meaning at first sight, used in common law jurisdictions to denote evidence that is sufficient, if not rebutted, to prove a particular proposition of fact. ...


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 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 US, beyond a reasonable doubt (commonly refered to as BARD), or just beyond reasonable doubt. In addition to these, the US introduced a third standard called clear and convincing evidence. Look up Proof on Wiktionary, the free dictionary The word proof can mean: Shit and wanker originally, a test assessing the validity or quality of something. ... A court is an official, public forum which a sovereign establishes by lawful authority to adjudicate disputes, and to dispense civil, labour, administrative and criminal justice under the law. ...


Balance of probabilities

Also known as "preponderance of the 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 proposition is true. Lord Denning in Miller v. Minister of Pension described it simply as "more probable than not". Civil law has at least three meanings. ... The word probability derives from the Latin probare (to prove, or to test). ... Alfred Thompson Denning, Baron Denning (23 January 1899–6 March 1999) was a British barrister from Hampshire who became Master of the Rolls (the senior civil judge in the Court of Appeal of England and Wales) and was generally well liked, both within the legal profession and outside it. ...


Beyond a reasonable doubt

This is the standard required in most criminal cases. This means that the proposition must be proven to the extent that there is no "reasonable doubt" in the mind of a reasonable person (usually this means the mind of the judge or jury). There can still be a doubt, but only to the extent that it would be "unreasonable" to assume the falsity of the proposition. 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 man hesitate in the most important of his or her affairs." Criminal law (also known as penal law) is the body of common law that punishes criminals for committing offences against the state. ... The reasonable man or reasonable person standard is a legal fiction that originated in the development of the common law. ... Jurisprudence is the scientific study of law through a philosophical lens. ... Reversible error in an error by the trier of law (judge) or the trier of fact (jury - or again the judge if it is a bench trial) or malfeasance by one of the trying attorneys which results in an unfair trial. ...


The difference between the criminal and civil standards of proof has raised some interesting cases. For example, O.J. Simpson was cleared in a criminal trial of murder, but, in a subsequent civil trial, due to the lower standard of proof, had substantial damages for wrongful death ordered against him. O.J. Simpsons mugshot Orenthal James Simpson (born July 9, 1947 in San Francisco, California), publicly known by the initials O.J., and nicknamed The Juice, is a Hall of Fame former college and professional football player and film actor. ... In law, damages refers either to the harm suffered by a plaintiff in a civil action, or to the money paid or awarded to the plaintiff in compensation for such harm. ... Wrongful death is a claim in tort against a person who can be held liable for a death. ...


Clear and convincing evidence

Clear and convincing evidence is the intermediate level of burden of persuasion sometimes employed in the US civil procedure. In order 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 all but 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. 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). These rules govern how a lawsuit or case may be commenced, what kind of service of process is required, the types of pleadings or... A trier of fact is the person or group of persons in a trial who make findings of fact as opposed to rulings of law. ...


Probable cause

Probable cause is a relatively low standard of proof, which is used in the United States to determine whether a search is warranted. It is also used by grand juries to determine whether to issue an indictment. In United States criminal law, probable cause refers to the standard by which a police officer may make an arrest, conduct a personal or property search or obtain a warrant. ... A grand jury is a type of common law jury responsible for investigating alleged crimes, examining evidence, and issuing indictments if they believe that there is enough evidence for a trial to proceed. ... In the common law legal system, an indictment is a formal charge of having committed a serious criminal offence. ...


Legal uses

In jurisprudence, the burden of proof is the concept of holding one party to a dispute or one side of a debate responsible for producing a prima facie case. If this party fails to produce a valid case, the decision will go against them, without requiring any further evidence or discussion. Jurisprudence is the scientific study of law through a philosophical lens. ... Prima facie (PRY-muh-FAY-shee; -shuh) is a Latin expression meaning at first sight, used in common law jurisdictions to denote evidence that is sufficient, if not rebutted, to prove a particular proposition of fact. ... The law of evidence governs the use of testimony (eg. ...

Burden of proof is one of the most important issues in litigation, and in criminal cases it is closely linked with the presumption of innocence - the principle in most modern legal systems that an accused person is "innocent until proven guilty". The Burden of Persuasion in a debate or trial is the requirement that those arguing against the status quo must demonstrate that a problem exists. ... A lawsuit is a civil action brought before a court in order to recover a right, obtain damages for an injury, obtain an injunction to prevent an injury, or obtain a declaratory judgment to prevent future legal disputes. ... Presumption of innocence is a legal right that the accused enjoys in criminal trials in many modern nations. ...


The burden, therefore, initially lies with the plaintiffs in a case, and not on a defendant who would need to prove that something did not happen. Adequate evidence can, however, shift the burden of proof to the other party. A plaintiff, also known as a claimant or complainant, is the party who initiates a lawsuit (also known as an action) before a court. ... A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ...


Criminal law

In criminal cases, the burden of proof is often on the prosecutor. 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 innocent if a valid case is not presented. Criminal law (also known as penal law) is the body of common law that punishes criminals for committing offences against the state. ... The examples and perspective in this article do not represent a worldwide view. ... In law, jurisdiction refers to the aspect of a any unique legal authority as being localized within boundaries. ...


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
      • 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 a murderer
      • Measure of proof: P has to prove all the elements beyond a reasonable doubt.
        • The witness did see D fire the gun, that bullet did come from D's gun, D did pull the trigger, the gun shot did kill the victim ...

This article is about witnesses in law courts. ... This article or section should be merged with Forensic science Forensic evidence consists of anything that can be used in a court of law to convict a person of a crime. ... An autopsy, also known as a post-mortem examination or an obduction, is a medical procedure that consists of a thorough examination of a corpse to determine the cause and manner of a persons death and to evaluate any disease or injury that may be present. ... 155 mm M198 howitzer U.S. Army soldier with a compact M249 variant USS Iowa (BB-61) fires a full broadside of nine 16/50 and six 5/38 guns during a target exercise near Vieques Island, Puerto Rico, 1 July 1984. ... .357 Magnum cartridges, containing bullets. ... This article needs to be cleaned up to conform to a higher standard of quality. ... Victim was the title of a British film made in 1961, directed by Basil Deardon and starring Dirk Bogarde and Sylvia Simms. ...

Practice

In practice, the question of who has burden of proof usually does not change the outcome of a case, because prosecutors rarely bring cases which are marginal enough so that who has burden of proof makes a difference. In any case, most criminal cases in the United States are resolved via plea bargaining in which burden of proof again does not make a significant difference to the outcome of the case. A plea bargain is an agreement in a criminal case in which a prosecutor and a defendant arrange to settle the case against the defendant. ...


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. Civil law has at least three meanings. ...


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 person's responsibility who is making the bold claim to prove it.


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 beliefs about thermodynamics. Consensus has two common meanings. ... Charles Bennett examines three cold fusion test cells at the Oak Ridge National Laboratory, USA // Cold fusion is the name for a claimed nuclear fusion reaction occurring well below the temperature required for thermonuclear reactions (millions of degrees Celsius) in a relatively small table top apparatus. ... Thermodynamics (from the Greek thermos meaning heat and dynamis meaning power) is a branch of physics that studies the effects of temperature, pressure, and volume changes on physical systems at the macroscopic scale. ...


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. The Amazing Criswell (born Jeron King Criswell on August 18, 1907, died October 4, 1982) was an American psychic who was famous for his wildly inaccurate predictions. ... Edward D. Wood, Jr. ... Plan 9 From Outer Space is a 1959 science fiction/horror film written, produced and directed by Edward D. Wood, Jr. ...


See also


  Results from FactBites:
 
Shifting the Burden-of-Proof Rules in Federal Tax Cases (2011 words)
One of the law’s provisions shifted the burden of proof from the individual taxpayer to the IRS in the U.S. Tax Court, the federal district courts, or the Court of Federal Claims.
The burden of persuasion requires the party to establish the merits of the claim by a preponderance of the evidence.
For the IRS to have the burden of proof in a tax case, certain conditions or contingencies must first be met by the taxpayer.
Encyclopedia: Burden of proof (1654 words)
Burden of proof is one of the most important issues in litigation, and in criminal cases it is closely linked with the presumption of innocence - the principle in most modern legal systems that an accused person is "innocent until proven guilty".
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 burden of proof is the obligation on a party to establish the facts in issue in a case to the required degree of certainty (the standard of proof) in order to prove their case.
  More results at FactBites »

 
 

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