Legal burden of proof
From Wikipedia, the free encyclopedia
Burden of proof (
Latin:
onus probandi)
is the obligation resting on a party in a trial to produce the evidence
that will shift the conclusion away from the default position to one's
own position.
The burden of proof is often associated with the Latin
maxim semper necessitas probandi incumbit ei qui agit, the best translation of which seems to be: "the necessity of proof always lies with the person who lays charges."
[1]
He who does not carry the burden of proof carries the
benefit of assumption,
meaning he needs no evidence to support his claim. Fulfilling the
burden of proof effectively captures the benefit of assumption, passing
the burden of proof off to another party.
Definition
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
offense (generally beyond a reasonable doubt) and to disprove all the
defenses except for
affirmative defenses in which the proof of non-existence of all affirmative defense(s) is not constitutionally required of the prosecution.
[2]
It is not to be confused with
evidential burden,
which is an obligation that shifts between parties over the course of
the hearing or trial. It is not a burden of proof, but the burden to
adduce sufficient evidence to properly raise an issue at court.
Standard of proof: United States
Burden of proof refers most generally to the obligation of a party to
prove its allegations at trial. In a civil case the plaintiff sets
forth its allegations in a complaint, petition or other pleading. The
defendant is then required to file a responsive pleading denying some or
all of the allegations and setting forth any affirmative facts in
defense
affirmative defenses. Each party has the burden of proof of their allegations. In
In Re Rogers the Alabama Supreme Court set forth a common explication of the concept as a jurisprudential maxim:
"The Sixth Edition of Black's Law Dictionary explained the
parenthetical maxim as follows: ¶ 'Ei incumbit probatio, qui dicit, non
qui negat; cum per rerum naturam factum negantis probatio nulla sit....
The proof lies upon him who affirms, not upon him who denies; since, by
the nature of things, he who denies a fact cannot produce any proof. ¶
Black's Law Dictionary 516 (6th ed. 1990).'"
[3]
Legal standards
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.
An investigatory stop is a seizure under the Fourth Amendment. The
state must justify the seizure by showing that the officer conducting
the stop had a reasonable articulable suspicion that criminal activity
was afoot. The important point is that officers cannot deprive a citizen
of liberty unless the officer can point to specific facts and
circumstances and inferences therefrom that would amount to a reasonable
suspicion. The officer must be prepared to establish that criminal
activity was a logical explanation for what he perceived. The
requirement serves to prevent officers from stopping individuals based
merely on hunches or unfounded suspicions. The purpose of the stop and
detention is to investigate to the extent necessary to confirm or dispel
the original suspicion. If the initial confrontation with the person
stopped dispels suspicion of criminal activity the officer must end the
detention and allow the person to go about his or her business. If the
investigation confirms the officer's initial suspicion or reveals
evidence that would justify continued detention the officer may require
the person detained to remain at the scene until further investigation
is complete. In some cases, the investigation may develop sufficient
evidence to constitute probable cause.
Reasonable to believe
In Arizona v. Gant
(2009) the court defined a new standard, that of "reasonable to
believe." This standard applies only to vehicle searches after the
suspect has been placed under arrest and overruled New York v. Belton
by saying it must be "reasonable to believe" there is more evidence in
the vehicle of the crime the suspect was arrested for. Only then are
police officers allowed to go back and search a vehicle incident to a
suspect's arrest.
There is still an ongoing debate as to the exact meaning of this
phrase. Some courts have said it should be a new standard while others
have equated it with the "reasonable suspicion" of the Terry stop. Most courts have agreed it is somewhere less than probable cause.
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 civil context, this standard is often used where plaintiffs are seeking a prejudgement 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[who?] 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 would cause a reasonable person not to feel free to leave
- probable cause required: arrest.
Some credible evidence
One of the least reliable standards of proof, this assessment is often used in administrative law, and often in Child Protective Services
(CPS) proceedings in some states. The "Some Credible Evidence" standard
is used as a legal place-holder to bring some controversy before a
trier of fact, and into a legal process. It is on the order of the
factual standard of proof needed to achieve a finding of "Probable
Cause" used in ex parte threshold determinations needed before a court
will issue a search warrant. It is a lower standard of proof than the
"Preponderance of the Evidence" standard. The "Some Credible Evidence"
standard does not require the fact-finder to weigh conflicting evidence,
merely requiring the investigator or prosecutor to present the bare
minimum of material credible evidence to support the allegations against
the subject, or in support of the allegation; see Valmonte v. Bane,
18 F.3d 992 (2nd Cir. 1994). (In some Federal Appellate Circuit Courts,
such as the Second Circuit, the "some credible evidence" standard has
been found constitutionally insufficient to protect liberty interests of
the parties in controversy at CPS hearings.)
Substantial evidence
In some appeals from decisions of administrative agencies, the courts apply a "substantial evidence" standard of review over the agency's factual findings. In the United States, for example, if a Social Security Disability Insurance claimant is found "not disabled" (and, therefore, ineligible for benefits) by an Administrative Law Judge (ALJ) and the claimant appeals, both the Appeals Council (the body within the Social Security Administration that hears appeals from decisions of ALJs) and the Federal courts (which, in this type of case, will normally hear an appeal only after the claimant has exhausted all administrative remedies)
will look to see whether the administrative law judge's decision was
supported by "substantial evidence" or not. Substantial evidence is
"more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."[4]
Preponderance of the evidence
Preponderance of the evidence, also known as balance of probabilities is the standard required in most civil cases.
This is also the standard of proof used in Grand Jury indictment
proceedings (which, unlike civil proceedings, are procedurally
unrebuttable), and in family court determinations solely involving money, such as child support under the Child Support Standards Act.
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. Lord Denning, in Miller v. Minister of Pensions,[5] described it simply as "more probable than not." Until 1970, this was also the standard used in juvenile court in the United States.
This is also the standard of proof used when determining eligibility
of unemployment benefits for a former employee accused of losing their
job through alleged misconduct. In most US states, the employer must
prove this case based on preponderance of the evidence.
Clear and convincing evidence
Clear and convincing evidence is a higher level of burden of
persuasion than a "Preponderance of the Evidence". It is employed
intra-adjudicatively in Administrative Court determinations, as well as
in civil and certain criminal procedure in the United States. For example, a prisoner seeking habeas corpus relief from capital punishment must prove his factual innocence by clear and convincing evidence.[6]
This standard is used in many types of equity cases, including paternity, PINS, juvenile delinquency, child custody, the probate of both wills and living wills, petitions to remove a person from life support ("right to die" cases),[7] and many similar cases.
Clear and convincing proof means that the evidence presented by a
party during the trial must be highly and substantially more probable to
be true than not and the trier of fact must have a firm belief or
conviction in its factuality. In this standard, a greater degree of
believability must be met than the common standard of proof in civil
actions, "Preponderance of the Evidence", which requires that the facts
as a threshold be more likely than not to prove the issue for which they
are asserted.
This standard is also known as "Clear and Convincing Evidence";
"Clear, Convincing, and Satisfactory Evidence"; "Clear, Cognizant, and
Convincing Evidence"; and "Clear, Unequivocal, Satisfactory, and
Convincing Evidence", and is applied in cases or situations involving an
equitable remedy or where a presumptive civil liberty interest exists.
Beyond reasonable doubt
This is the highest standard used as the burden of proof in
Anglo-American jurisprudence and typically only applies in criminal
proceedings.
It has been described as, in negative terms, as a proof having been met if there is no plausible reason to believe otherwise.
If there is a real doubt, based upon reason and common sense after
careful and impartial consideration of all the evidence, or lack of
evidence, in a case, then the level of proof has not been met.
Proof beyond a reasonable doubt, therefore, is proof of such a
convincing character that you would be willing to rely and act upon it
without hesitation in the most important of your own affairs. However,
it does not mean an absolute certainty. The standard that must be met by
the prosecution's evidence in a criminal prosecution is that no other
logical explanation can be derived from the facts except that the
defendant committed the crime, thereby overcoming the presumption that a
person is innocent until proven guilty.
If the trier of fact has no doubt as to the defendant's guilt, or if
their only doubts are unreasonable doubts, then the prosecutor has
proven the defendant's guilt beyond a reasonable doubt and the defendant
should be pronounced guilty.
The term connotes that evidence establishes a particular point to a
moral certainty and that it is beyond dispute that any reasonable
alternative is possible. It does not mean that no doubt exists as to the
accused's guilt, but only that no Reasonable Doubt is possible from the
evidence presented.
The main reason that the high proof standard of reasonable doubt is
used in criminal trials is that such proceedings can result in the
deprivation of a defendant's liberty or even in his or her death. These
outcomes are far more severe than in civil trials, in which monetary
damages are the common remedy.
Non-legal standards
Beyond the shadow of a doubt
Beyond the shadow of a doubt is the strictest 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 court never need (nor can) reach this level. This phrase, has, nonetheless, come to be associated with the law in popular culture.
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 qui negat, "the burden of proof rests on who asserts, not on who denies"). This principle is 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.
The presumption of innocence means three things:
- With respect to the critical facts of a case the defendant has no burden of proof whatsoever.[8]
- The state must prove the critical facts of the case to the appropriate level of certainty.
- The jury is not to draw any inferences adverse to the defendant from
the fact that he has been charged with a crime and is present in court
represented by counsel to face the charges against him.
The presumption of innocence does not mean that the jury or anyone
else must pretend or assume that the defendant is in fact innocent of
the charges. Nothing the jury does can alter the fact that the defendant
did or did not commit the offense. There is no intermediate state.
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.[9]
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.
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.[10]
The prosecution has 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.[11]
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:[11][12]
- 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 threat to society is the provision 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. However, in
cases of proving loss of future earning capacity, the plaintiff must
prove there is a real or substantial possibility of such a loss
occurring.
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.
Civil cases of 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 practised purposeful
segregation in part of a school system,” the burden of persuasion
shifts to the school to prove that it did not engage 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
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
(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.”
See also
References
- ^ Transnational principle of law: Trans-Lex.org
- ^ Patterson v. New York, 432 U.S. 197 (1977)
- ^ "Anthony Rogers v. Penske Truck Leasing: case 1080880". Supreme Court of Alabama. December 30, 2010.
- ^ See Richardson v. Perales, 402 U.S. 389, 401 (1971), quoting from Consolidated Edison Co. v. NLRB, 305 U. S. 197, 229 (1938).
- ^ Miller v. Minister of Pensions [1947] 2 All ER 372
- ^ Calderon v. Thompson, 523 U.S. 538 (1998). The petitioner, Thomas M. Thompson, a convicted rapist/murderer, was executed on July 14, 1998.
- ^ See, Quinlan v. New Jersey, and Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).
- ^ The
critical facts of a criminal case are whether the crime charged was
committed and whether the defendant is criminally responsible for the
commission of the crime.
- ^ Jackson v. Virginia, 443 U.S. 307 (1979).
- ^ Road Traffic Offenders Act 1988, s.5(2)
- ^ a b Herring, J. (2004). Criminal Law: Text, Cases, and Materials. Oxford: Oxford University Press. pp. 58–64. ISBN 0-19-876578-9.
- ^ R v. DPP, Ex Parte Kebeline [1999] UKHL 43
Bibliography
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