Editing Burden of proof (law) (section)

== Examples ==

=== Criminal law ===
[[criminal law|Criminal]] cases usually place the burden of proof on the [[prosecutor]] (expressed in the [[List of legal Latin terms|Latin]] [[Brocard (law)|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 [[jurisdiction]]s. Where it is upheld, the accused will be found not guilty if this burden of proof is not sufficiently shown by the prosecution.<ref name=Bailii>{{cite web|title=Woolmington v DPP [1935] UKHL 1|url=http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/1935/1.html&query=woolmington&method=boolean|access-date=2015-01-22|archive-date=2015-09-23|archive-url=https://web.archive.org/web/20150923181915/http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/1935/1.html&query=woolmington&method=boolean|url-status=live}}</ref>
The presumption of innocence means three things:
* With respect to the critical facts of a case the defendant has no burden of proof whatsoever.<ref>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.</ref>
* 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 they have been charged with a crime and are present in court facing the charges against them.

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 indeed 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 it is up to the jury itself to decide if they are, in fact, convinced of guilty beyond a reasonable doubt.<ref>''Jackson v. Virginia'', {{ussc|443|307|1979}}.</ref> 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. 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 offense 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 their defence in a summary trial, 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 defense that there was no likelihood of their driving while drunk.<ref>Road Traffic Offenders Act 1988, s.5(2)</ref> 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 they were not likely to drive.<ref name="herring">{{cite book |author=Herring, J. |year=2004 |title=Criminal Law: Text, Cases, and Materials |location=Oxford |publisher=Oxford University Press |isbn=0-19-876578-9 |pages=[https://archive.org/details/criminallawtextc0000herr/page/58 58–64] |url=https://archive.org/details/criminallawtextc0000herr/page/58 }}</ref>

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 [[Judicial functions of the House of Lords|House of Lords]] held that:<ref name="herring" /><ref>[http://www.bailii.org/uk/cases/UKHL/1999/43.html ''R v. DPP, ex parte Kebeline''] {{Webarchive|url=https://web.archive.org/web/20081201105659/http://www.bailii.org/uk/cases/UKHL/1999/43.html |date=2008-12-01 }} [1999] UKHL 43</ref>
* 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?''

In some cases, there is a [[reverse onus]] on the accused. A typical example is that of a [[Hit and run#Canada|hit-and-run]] charge prosecuted under the Canadian [[Criminal Code (Canada)|Criminal Code]]. The defendant is presumed to have fled the scene of a crash, to avoid civil or criminal liability, if the prosecution can prove the remaining essential elements of the offense.

=== Civil law ===
In [[Civil law (common law)|civil law]] cases, such as a dispute over a contract or a claim about an accidental [[Personal injury|injury]], the burden of proof usually 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.

This rule is not absolute in civil lawsuits; unlike with criminal offenses, laws may establish a different burden of proof, or the burden in an individual case may be reversed as a matter of fairness.<ref name="schaffer" />  For example, if a bank or government agency has a [[legal duty]] to keep certain records, and a lawsuit alleges that the proper records were not kept, then the plaintiff may not be required to [[Evidence of absence|prove a negative]]; instead, the respondent could be required to prove to the court that the records were kept.

=== Civil cases of the U.S. Supreme Court ===
In ''Keyes v. Sch. Dist. No. 1'', 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'."<ref name=keyes>{{ussc|413|189|1973}}</ref> 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 persuasion shifts to the school to prove that it did not engage in such discrimination in other segregated schools in the same system.<ref name=keyes/>

In ''Director, Office of Workers' Compensation Programs v. Greenwich Collieries'', 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''.<ref>{{ussc|512|267|1994}}</ref>

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''.<ref name=schaffer>{{ussc|546|49|2005}}</ref> 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".<ref name=schaffer/> In support of this proposition, the Court cited 2 J. Strong, ''McCormick on Evidence'' § 337, 412 (5th ed. 1999), which states:

{{blockquote|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.<ref name=schaffer/>}}

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. ... Under some circumstances this Court has even placed the burden of persuasion over an entire claim on the defendant. ... [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."<ref name=schaffer/>