Talk:Burden of proof (law)

Untitled

The burden of proof rests with the person who wants to change someone's mind. That person must take on the burden of proving something to a person.

A person with a nonstandard theory who wants it to become the standard theory has to convince a lot of people; in that case, he does have the burden of proving it to enough people to get that recognition. If he doesn't care whether it becomes the standard theory, he doesn't have the burden of proof.

For instance, say that someone develops a nonstandard theory that disagrees with a standard theory. Here are the possibilities :

• The proponents of both don't care to change minds on the other side, so no one takes the time and energy to do so (no one takes the burden of proof).
• The proponents of only one side want to convince those of the other side, so they take the time and energy to do so (they take the burden of proof).
• The proponents of both sides want to convinve those of the other side, so both take the time and energy to do so (both sides take on the burden).

12.214.45.9 20:41, 30 May 2004 (UTC)

The legal use is somewhat primary, in that the colloquial use is (I believe) derived from it. In any case, the way you wrote it was fairly non-encyclopedic. I've tried to put together a kind of rump format for addressing some of the issues you raise. More effort will probably be needed, but it should be written like an encyclopedia article. VV 09:19, 1 Jun 2004 (UTC)

An encyclopedia is not made to sound or look "encyclopedic" (whatever that means). It is made to allow people to learn about various topics. If a presentation is easy to understand, adding in overblown words and grammar to make it sound falsely academic is abhorrent ! It goes against the purpose and spirit of an encyclopedia. It is a plague of logorrhoea (see the examples in the article) or pleonasm which makes it unapproachable unless the reader knows legal or logical terminology fairly well and likes slogging through overwordy grammar. Occam's Razor applies to writing.

If you want to say that the legal use was the original use, you can say it regardless of the order of presentation.

I only raised one issue (about changing someone's mind) and I assume that you didn't actually read what you replied to on this page. One issue was somehow transformed into "the issues" and was totally obliterated in the article (you weren't "addressing" the issue at all). It looks like you were angry that I dared change the article and hastily wrote a non sequitur justification.

12.214.45.9 02:06, 6 Jun 2004 (UTC)

IMO, the version by VV is by far superior to the one promoted by 12.214.45.9. That's not to say there isn't room for improvement, but THAT version should be the starting point for revisions. older≠wiser 03:20, 22 Jun 2004 (UTC)

expand on "person who claims" notion

The article is good. But I think the general definition of "burden of proof" needs to be expanded. Indeed, the burden of proof rests on the prosecution because of the ASUMPTION of "innocent until proven guilty". (Note other cultures do not make this assumption, thereby shifting the burden of proof to the defense.

As for the general case, we should note the two examples: "I exist" "I don't exist" The article is spot on that the burden of proof lies with the claimant, regardless of how common sense the claim is. One might want to say that the burden of proof lies with the "default" position. However, we are outside the legal context here. The person who claims "I exist" has no more justification above the person who claims "I don't exist" aside from the fallacious support of appeals to popularity and common sense.

I'll let the article progress, and maybe expand on this notion in the future and see what everyone thinks.

Merger

I merged Standard of proof. See Talk:Standard of proof for reference. (Sam Spade | talk | contributions) 16:59, 13 Mar 2005 (UTC)

The problem I have with this is that Burden of Proof is NOT the same thing as Standard of Proof. These "standards" discussed in the third section titled "Standard of proof in the United States" describe the standards of proof, meaning how well proof or guilt must be established. Burden of Proof refers to which party is required to make their case (the prosecutor, or the plaintiff, petitioner, and so on). I'm not sure if this problem was caused by the merger? RedWriter (talk) 17:53, 20 April 2016 (UTC)

Shadow of a doubt

I was surprised to find that the level of "beyond a shadow of a doubt" is not discussed in this article. I am under the impression that it is a higher standard than "beyond a reasonable doubt", and that it is typical to be the required level of certainty for capital cases. But I am a total amateur in this area, and would love for a more informed person to write something here about it (or at least insert a link to a different article). --Keeves 23:34, 2 January 2006 (UTC)

In American law, there is basically no such burden of proof at the level of "beyond a shadow of a doubt." In the USA, at least, the highest standard is "beyond a reasonable doubt." Yours, Famspear 19:43, 11 March 2006 (UTC)

"beyond a shadow of a doubt" is colloquial not legal - I would question whether 'doubt' is actually able to cast a shadow as it is not tangible. —Preceding unsigned comment added by 193.63.217.208 (talk • contribs) 5 December 2006

Although "beyond a shadow of a doubt" has no legal signifigance, the US Supreme Court has recognized that "residual doubt" may play a role in the minds of jurors sitting in a capital case during the penalty phase. See for example Lockhart v. McCree 476 U.S. 162, 106 S.Ct. 1758 U.S.Ark.,1986. —Preceding unsigned comment added by 24.229.53.165 (talk • contribs) on 13 February 2007.

Note: A precise parallel citation on that U.S. Supreme Court decision is Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986). Yours, Famspear 16:41, 13 February 2007 (UTC)

Well, I've created the "beyond the shadow of a doubt" entry. I hope this is adequite, although the page itself could certainly be worked on piratejosh85

Reasonable Suspicion

This analysis is totally missing the reasonable suspicion standard. If we are putting probable cause as a burden of proof (which seems troublesome to me because we are talking about burden of proof at trial in one instance and burden of proof necessary to conduct an arrest in another) then reasonable suspicion should be included as a level of proof directly below probable cause. I would put in reasonable suspicion because many times it is the level of proof necessary to conduct a seizure or search as a result to probable cause.

For example, reasonable suspicion elevates an encounter between a citizen and a police officer beyond the realm of consensual encounter into the realm of brief investigative stops/searches (Terry stops/frisks). Based on reasonable suspicion an intermediate level of a search and/or seizure under the forth amendment can take place. Then evidence can be obtained that would give the officer probable cause to conduct a costodial arrest.

Without Reasonable Suspicion, there can be no probable cause in this context, because probable cause is necessarily predicated on the evidence that is obtained as a result of reasonable suspicion.

Obviously in other contexts, such as where an officer personally witnesses a crime, his level of suspicion raises to probable cause, skipping reasonable suspicion.

If you are putting probable cause in as a burden of proof, you should also include reasonable suspicion.

-smvans7

• The section begins with the statement "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 ..." The reference to search is incorrect. A Terry stop allows officers to detained a person for iverstigation if the officers have a reasonable articulable suspicion that the defendant was, is, or will be engaged in criminal activity. The officer may also frisk the suspect for weapons if the officer has a reasonable articulable suspicion that the person may be armed. A Terry stop does not automatically allow an officer to frisk the detainee for weapons and under no circumstances would reasonable suspicion justify a search.

• • Are there available resources to clear up these points and write them into the article? Piratejosh85 (talk) 18:26, 19 June 2009 (UTC)

The Science And Other Applications example is weak

This example asserts a burden of proof for "unusual" claims. But contradicts him/herself with example from SETI where the author relieves the "unusual" claim of the burden, showing the inherent subjectiveness of the concept "unusual" and its lack of validity in science or logic. Basically, no assertion has any more of a "burden of proof" than any other.

I looked at about 1/2 dozen sites that asserted the Burden of Proof principle was valid. They all used either a criminal legal system analogy (to innocent until proven guilty) or a formal debating contest analogy (score points when your team has the obligation to assert a point, point to the opponent if you fail -- they need not succeed). Argument by Analogy is itself a fallacy. The reason these analogies do not apply is that they are unusual cases where we have an exception to our normal method of finding truth: which is the preponderance of evidence is the criteria (as in civil court). These exceptions are cases where Special Pleading actually IS valid -- the defendant and the defending debators are given an advantage for good reasons. But in the absence of these exceptional cases, Special Pleading is a fallacy. A few fallacy sites list Burden of Proof as a fallacy.

They all should for the following reason: Suppose I propose the hypothesis that a specific type of alcoholic beverage was brewed by pre-columbian indians. There are two possibilities, this drink was brewed, or it was not. Alternatively, I can propose the hypothesis that this alcoholic beverage was not brewed by pre-columbian indians. The two options are the same. As both these hypotheses are assertions about reality, the correct thing to do is to test the assertion by looking at the evidence. Empirically, there are a lot of possible conseqeunces of the test, ranging from no evidence, contradictory evidence, contradicting evidence, weak evidence one way or another, or strong evidence one way or another. Suppose the result was weak evidence for the existence of the beverage. By the burden of proof standard (which other sites apply to any asserter), the correct conclusion to reach about the world depends upon the framing of the question. By the burden of proof standard, one should conclude the beverage was not brewed if one starts with the first hypothesis, and that it was based on the second. The problem gets even worse with the case of no evidence. By the burden of proof standard, in one case no evidence leads to concluding the beverage was brewed, and in the other case that it was not, when the correct conclusion in this situation is that we have no idea.

I think this section should be rewritten to say that "burden of proof" has no application outside criminal law.

The problem is not that the concept of "burden of proof" isn't used outside of law; it's that the section is not neutral. Instead of explaining a particular "burden of proof" policy in various situations, it should cite others' views of such policies. -- Beland 01:23, 4 October 2006 (UTC)

Another view: I agree that the science examples are weak--the author was clearly attempting some levity. However, it goes to far to assert bias on the author's part. Yes, the concept of proof is used a bit differently, but it is important that the very reason that the American legal system operates under the assumption of "innocent until proven guilty", is that it was informed by the "age or reason" underway when the nation was formed. Indeed, most of the founding fathers forcefully espoused deist religious beliefs, which asserted that while God is real, the only Revelation that can be trusted is the Creation itself--anything else can be forged or confounded.

Ultimately, this all goes back to the writing of Sir Francis Bacon, who first brought the notion of what we would call scientific skepticism to a wide audience. The phrase "burden of proof" today is used mostly in the law, but it is tighly coupled to a phrase of currency in scientific circles "Extraordinary claims require extraordinary evidence". The assertion of the reality of extraterestrial life can not be clearly supported or refuted with current knowledge, so it simply cannot be defended to those with whose religious views it conflicts. One can CHOOSE to believe this notion or not. But if I were to assert a novel model describing the operation of gravity (as has been recently put forward to explain certain cosmological measurements) this would require more than a cohertent theory--it would require substantial, repeatable, verifiable evidence.

The whole point of which is that, sad though it is to accept, the human mind is NOT the perfect, intelligently designed thinking machine we would like it to be. Our brain takes so many shortcuts and makes so many errors, that after 40,000 years of stumbling, a few people (Like Bacon) started writting down ways we can keep our brains from fooling us. This one event (the rise of scientific thinking) ended the dark ages, brought about the enlightenment, and in the blink of the historical eye, took us to the Moon and back. "Burden of Proof" is simply the law's version of skepticism, and it acknowledges that proof is not an absolute. Just as a challenge to gravitation requires more evidence than see, the notion the aliens could, in theory, exist, a challenge to the plaintiff's life requires more evidence than a challenge to his pocketbook.

Which brings me to a question that I have never seen answered: Does the American legal system consider quality of proof in sentensing? I do not believe so, but in this scientific age, it ought to. For example, a man convicted of murder based solely on a single human testimony might not qualify for the same swift execution as a man who pulls out a machine gun at the mall and winds up splattered with DNA evidence. Both might be guilty "beyond a reasonable doubt", but one is case is less refutable than the other, as a flood of recent DNA evidence cases attests.CreggH 16:15, 22 November 2006 (UTC)

Civil Cases - BOP Not Always Plaintiff's

Maybe too in depth for this otherwise good definition but, there are times in civil matters, following the presentment of a prima facie case by the plaintiff, where the burden of proof may fall on the defendant during trial. This is known as the "burden shifting rule" and is most often seen in civil rights and IRS cases. So, a broad statement claiming that it is the sole responsibility of the plaintiff to provide the BOP, is technically not always true.

Origin of Balance of Probabilities

Does anyone know when BoP passed into English law? I'm to be involved in a hearing soon that hinges on it, and don't want to look like a fool if/when I'm asked whether I understand the principle.James Casey 15:36, 15 December 2006 (UTC)

"Beyond a Reasonable Doubt"

It's true that one's person's thoughts expressed can change anothers, but (correct me if I'm wrong) in the case of reasonable doubt, wouldn't the person have to have had some doubt in their mind in the first place? You can't just automatically change your opinions within a matter of minutes without having some sort of doubt already installed, can you? It's almost hypocritcal, in a way. Have any of you read 12 Angry Men, or seen it in the theater? This story is a prime example of how the transfer of reasonable doubt works in the court system. I'm currently writing an essay for my Literature teacher about reasonable doubt, with the play as the essay's basis. It just seems that the term "beyond a reasonable doubt" will remain an abstract phrase; no one person will ever have the definition proper to fit each of us, not until we all become the same. —The preceding unsigned comment was added by Lil WhizKid (talk • contribs) 00:05, 27 January 2007 (UTC).

Is there something in the article that you think needs to be improved? Oh, and please sign your posts by typing four tildes like this ~~~~ so that we can read who said what, and when. It makes it easier for people who are responding later. Thanks. ElinorD 22:30, 5 February 2007 (UTC)

I'm not part of this conversation thread, but I did just add an EssayLike tag to this section of the article because upon reading it I was struck with how unsourced and unencyclopedic it was. It reads more like an argument for a certain interpretation of the concept than an objective introduction to various possible interpretations. At the very least, its prose needs to be cleaned up to be written in the third person and broken into cite-able chunks of text. Tollsjo (talk) 08:48, 31 May 2009 (UTC)

Clear and Convincing Evidence (CCE)

Are you sure about the clear and convincing evidence concept? I thought that the BOP of CCE was lower than that of proof by preponderance of evidence (PPE). For example if police believe that a crime is taking place or that there is evidence of a crime in a home to be searched, there would have to be CCE to convince a judge that a search warrant needs to be issued.

Or there could be CCE enough to petition a judge that a person needs to be involunterily examined (In Florida it's called "Baker Acting" someone).

It should be noted that judges often err on the side of caution in cases like these, nothwithstanding the rights of the accused or target (respondent). —The preceding unsigned comment was added by Reyn562 (talk • contribs) 05:51, 18 February 2007 (UTC).

Delete last discussion (about CCE); I guess I was wrong.

Science and other applications weak, and also unreferenced

The latter complaint flows from the former. The claims in this section match the misconceptions of amateur retoricicians who attempt to apply burden of proof to ontological discussions rather than anything accepted by mainstream philosophy of science. If I am incorrect on this, can someone put some good references in there? And if not, is there any argument to not nix this section? Mathlaura 22:51, 3 November 2007 (UTC)

From the wiki page on Scientific method

"In the twentieth century, a hypothetico-deductive model for scientific method was formulated (for a more formal discussion, see below):

1. Use your experience: Consider the problem and try to make sense of it. Look for previous explanations. If this is a new problem to you, then move to step 2.

2. Form a conjecture: When nothing else is yet known, try to state an explanation, to someone else, or to your notebook.

3. Deduce a prediction from that explanation: If you assume 2 is true, what consequences follow?

4. Test : Look for the opposite of each consequence in order to disprove 2. It is a logical error to seek 3 directly as proof of 2. This error is called affirming the consequent."

This would appear to be in direct contradiction to the information on this page regarding science, especially point 4. I would propose the meaning of this section conform to the standard scientific method, contain a discussion of the discrepancy, or be deleted altogether. FusionKnight (talk) 14:02, 16 September 2008 (UTC)

agree

This article seems to be all about the law. Science needs to be brought in. See the next comment for first paragraph talk.Piratejosh85 (talk) 23:00, 8 December 2008 (UTC)

Reasonable Doubt section

This section reads like a term paper, or like lecture notes. It seems to be a synthesis of dictionary definitions to advance a position about reasonable doubt. It may be a correct position, but it seems unencyclopedic to me. cmh^TC 21:07, 3 September 2008 (UTC)

I agree. The section is much longer than the article on Reasonable Doubt itself. If the material is to be preserved in any form, it should be in the Reasonable Doubt article rather than in this article. However, the material does seem unencyclopedic. Twinkie eater91 (talk) 13:34, 16 November 2008 (UTC)

Opening paragraph

My opinion is that BOP should not be limited to the law in the opening paragraph. The law is not essential to the definition.

Agree

Yea, I agree. I went about trying to rewrite for interdiscipline, but I'm affraid I've just muddled things. Piratejosh85 (talk) 22:58, 8 December 2008 (UTC)

Reorg.

Not to complain, but this article has just got really messy and is due for makeover. Piratejosh85 (talk) 23:29, 5 July 2009 (UTC)

Reasonable Suspicion Probable Cause

Although i have contributed to the sections on reasonable suspicion and probable cause these subjects arguably dont belong in an article on burden of proof. Reasonable suspicion and probable cause are the standards that must be met to justify a constitutional intrusion. However, they are not the burden of proof. If a defendant challenges evidence obtained from his detention on the grounds that the officer lacked a reasonable suspicion that the defendant was engaged in criminal activity the burden is on the state to show by the preponderance of teh evidence that the standard has beenmet. The burden of proof is not reasonable suspicion but preponderance of the evidence. --Jgard5000 (talk) 20:35, 17 September 2009 (UTC)Jgard5000

Presumption of innocence

The presumption of innocence is a set of rules that govern criminal trial - it is similar to playing a board game - once you have the board porperly set up there must be some rule about who goes first - in many games you roll dice - the same thing could apply to criminal cases - the defendant and the prosecutor could meet before the judge who flps a coin - or they could play rock paper scissors to determine who goes first - the presumption says the state goes first - in fact it says that the defendant doesn't have to go at all - the defendant can simply sit back and see if hte state can move its case far enough along the board to pass the point of reasonable doubt. Games must have some rule to determine who wins - the POI says that the defendant always wins unless the state can eliminate any reasonable doubt as to the defendant's guilt - simple as that -

Considerations: Elvis

I believe the asymmetric BOP-levels in the Elvis example (given in the "Considerations"-section) to be wrong. What we have here imho is preexisting evidence (common knowledge) that already lowered the BOP-level. If I knew nothing about Elvis, I would need the exact same amount of evidence to prove either that he's dead or alive. 82.113.121.200 (talk) 22:55, 6 December 2009 (UTC)

Agreed. I'll try to make it clear that conventional knowledge much be taken into account in a rewrite. Philocentric (talk) 23:09, 19 January 2010 (UTC)

Cleaning things up.

I think most of us agree that this article is a bit messy due to diverse applications of burden of proof.

I'd like to propose the following.

Let's make the article for "burden of proof" a short general definition page that links to at least 2 specific and distinct applications of burden of proof; the legal application and the epistemological application. These links can be entitled "legal burden of proof" and "epistemological burden of proof".

I will take on this project and leave all content untouched until after the migration has been successfully completed.

What do you all think? Philocentric (talk) 08:53, 11 January 2010 (UTC)

I say go for it. There's too much of the one and the other in this article to make it flow through a single thread. When you do the law article, would you please consider editing down to size the section on "beyond a reasonable doubt." I, and I know others, have long felt this is inappropriately long. Piratejosh85 (talk) 16:22, 11 January 2010 (UTC)

I'll give it a week for more feedback, then make the change. My background is on the philosophy side, so I'll have to let you legal guys take care of the "beyond a reasonable doubt" section. Cheers. Philocentric (talk) 07:49, 12 January 2010 (UTC)

Thinking more about this, I don't know if the best title for the one subdivision is really epistemological. IMHO, that seems too broad. It seems like the non-legal aspects of the BOP is philisophic and scientific. If the one is titled law, others should match that level of abstraction. Piratejosh85 (talk) 16:38, 15 January 2010 (UTC)

I was actually thinking the same thing. "Philosophic Burden of Proof" does seems to be the better term. Philocentric (talk) 05:10, 16 January 2010 (UTC)

I'm still planning to get around to that migration. Give me another week. Philocentric (talk) 16:23, 16 February 2010 (UTC)

Moved!

I hope everyone is happy with the move. Cheers. Philocentric (talk) 17:15, 16 February 2010 (UTC)

Great job. Thanks for your effort Piratejosh85 (talk) 18:33, 17 February 2010 (UTC)

Just for future reference, splits (and similarly with merges) require certain history attribution procedures to comply with Wikipedia's content licenses (the GFDL and CC-BY-SA). It's really as simple as stating in the edit summary that you are performing a split and providing a proper link to the name of the article the content is being split to when you take out the content, and a similar edit summary when you add the material to the split off page noting where you split the content from with a link back to that article. I have added {{splitfrom}} and {{split-to}} to this talk page and the split talk page to provide attribution. Cheers.--Fuhghettaboutit (talk) 00:18, 18 February 2010 (UTC)

Evidential burden

I recently created a page on evidential burden. As Lord Bingham said in Sheldrake, evidential burden is strictly speaking not a "burden of proof" but rather a burden of raising an issue. Furthermore, the burden of persuasion is also known as the legal burden. If this article describes all burdens in the legal field (which includes both the evidential burden and the burden of persuasion), there is bound to be confusion. Therefore, if there is no objection from other learned editors, I will restrict the coverage of this article to the burden of persuasion and remove references to the evidential burden (but I may add links at the See Also section and other appropriate places). Craddocktm (talk) 09:18, 9 September 2010 (UTC)

Move suggestion

I feel that the distinguishing method used in the title of the article is somewhat out of line compared to other articles under the scope of WikiProject Law, and perhaps Wikipedia at large. As such, I recommend moving the article to the title Burden of Proof (Law). The P in proof can be lower-cased, if that is proper per titular naming. Before taking any action, I wish to first propose here, on the talk page. How does everyone else feel about the idea? KirkCliff2 (talk) 20:47, 9 November 2010 (UTC)

I am not sure about the move. The problem is that there are several burdens at law - and one of them is called "legal burden" which is the subject of this article. That is the way the Courts and lawyers refer to this particular type of burden at law. For example, see the House of Lords decision in Sheldrake v DPP:[1]. The phrase "legal burden" appears numerous times in the judgment.Craddocktm (talk) 18:06, 15 November 2010 (UTC)

Mea Culpa

I mistakenly removed two sections, including one I removed before, explaining the Canadian burden of proof concept "air of reality." I failed to notice that the article has been changed with sub captions differentiating between US law and UK law. The part I added to US law is missing citations. I will get that. I will follow the Wikipedia article on "Law" as a template footnote the Harvard bluebook "short-form" citation format for the full names of all cases linking them to the case text on Google Scholar. While I think the better practice would be to link to the website of the court that decided the case, that may not be possible. When trying to explain a legal concept,illustrations from the leading case, or one of them, are much better than trying to explain the concept and the abstract. That necessarily means choosing one jurisdiction over another, but that is not a dealbreaker. Da5id403 (talk) 00:24, 1 November 2011 (UTC)

I put in the two sections below as "other". Bearian (talk) 01:30, 1 November 2011 (UTC)

Burden of Proof Especially Important in Law and Science

I removed the sentence to this effect from the introduction. The caption "Legal Burden of Proof" makes the reference to law redundant and the reference to science irrelevant.

On other subjects, I think a bot removed some vandalism. A person asked if it was me. No. I am working on the citation format. I want the name of the case to be directly linked to the Google Scholar webpage with the case.

Does anyone know? I need to actually underline blank spaces as part of the formal way to cite to a case that is final but not yet in print and thus not paginated. It seems Wikipedia keeps deleting them. Does anyone understand the question of what to do about it? Should I go to my personal talk page and try to get help there instead of putting it here. — Preceding unsigned comment added by Da5id403 (talk • contribs) 01:43, 2 November 2011 (UTC) Da5id403 (talk) 01:46, 2 November 2011 (UTC)

Statistical proof

Editors may be interested in a section recently added to the article on statistical proof in legal proceedings. This has relevance to this article. Thanks.Thompsma (talk) 22:57, 11 November 2011 (UTC)

Article restructuring

I have added a section on the "substantial evidence" standard (which is really a standard of review rather than a standard of proof) and have also restructured the article. Please feel free to revert any error that I may have inadvertently introduced. Bwrs (talk) 05:19, 20 March 2012 (UTC)

Grand Jury standard

These are two quotes from the current article; what's verifiable? --Elvey (talk) 05:02, 29 December 2012 (UTC)

"Probable cause is ... used by grand juries to determine whether to issue an indictment."

"Preponderance of the evidence, also known as balance of probabilities is ... the standard of proof used in Grand Jury indictment proceedings (which, unlike civil proceedings, are procedurally unrebuttable)"

Requested move 13 January 2016

The following is a closed discussion of a requested move. Please do not modify it. Subsequent comments should be made in a new section on the talk page. Editors desiring to contest the closing decision should consider a move review. No further edits should be made to this section.

The result of the move request was: not moved. Procedural close, no rationale for the proposed move has been given. Malcolmxl5 (talk) 08:03, 22 January 2016 (UTC)

---

Legal burden of proof → Burden of proof (law) – Please place your rationale for the proposed move here. 203.109.162.133 (talk) 20:47, 13 January 2016 (UTC) 203.109.162.133 (talk) 20:47, 13 January 2016 (UTC)

---

The above discussion is preserved as an archive of a requested move. Please do not modify it. Subsequent comments should be made in a new section on this talk page or in a move review. No further edits should be made to this section.

French

https://fr.wikipedia.org/wiki/Charge_de_la_preuve_(droit). --Japarthur (talk) 04:29, 3 November 2016 (UTC)

Use of footnotes

The footnote for "With respect to the critical facts of a case the defendant has no burden of proof whatsoever.", the reference in the footnote is not a source, but more like a conventional footnote. MBUSHIstory (talk) 17:14, 6 December 2016 (UTC)

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Moral certitude in canon law

It may be worth adding a section on the burden of proof in Catholic canon law. There is a notion there of "moral certitude" which is distinct from other sorts listed. The following is a quote from Dignitas Connubii (2005), an instruction from the Vatican on marriage nullity process:

"Art. 247 – § 1. In order to declare the nullity of a marriage there is required in the mind of the judge moral certainty of its nullity (cf. can. 1608, § 1). § 2. In order to have the moral certainty necessary by law, a preponderance of the proofs and indications is not sufficient, but it is required that any prudent positive doubt of making an error, in law or in fact, is excluded, even if the mere possibility of the contrary remains."

Nighm (talk) 08:45, 3 May 2018 (UTC)

51% ?

The section about probable cause talks a lot about this standard corresponding to a threshold probability of 51%. This is strange in that a) the main article on probable cause doesn't mention this threshold and b) if this were correct, it's unclear why "probable cause" and "preponderance of evidence" are different standards (with the section on preponderance of evidence also describing that standard by "more probable than not"). The emphasis on 51% was added in this anonymous edit. Before that, there was only one sentence saying that different courts had used different numerical thresholds.

That change should either be undone, or, if it is correct, there should be an explanation why there are two terms ("probable cause" and "preponderance of evidence") for the same concept of "more probable than not". Joriki (talk) 05:49, 9 July 2020 (UTC)

Probable cause and reasonable suspicion should not be in this article; it looks like the article has been heavily vandalized. Those are terms of art for the factual foundation that a law enforcement officer must develop to proceed with a search or seizure, not standards of proof. For example, this book excerpt explains how probable cause must be proven by the preponderance of the evidence. --Coolcaesar (talk) 08:08, 9 July 2020 (UTC)

Up to this version (October 2011), there were separate sections for "Criminal law standards for detentions, searches, arrests and warrants", "Standards for presenting cases or defenses", "Evidentiary standards of proof" and "Non-legal standards". This edit removed the two section headings "Standards for presenting cases or defenses" and "Evidentiary standards of proof" for no apparent reason, leaving the subsections that had been in the section "Evidentiary standards of proof" under the section heading "Criminal law standards for detentions, searches, arrests and warrants". This led to the entire section being renamed to "Legal standards" in this edit (in contrast to the only other remaining section, "Non-legal standards"). The section was further renamed to "Legal standards for burden of proof" in this edit, and the section on "Non-legal standards" was removed in this edit as "no[t] relevant".

I agree that the subsections that were originally in the section "Criminal law standards for detentions, searches, arrests and warrants" don't belong in this article, which defines "burden of proof" as a burden at trial. The problem extends beyond this article; the main article on reasonable suspicion calls reasonable suspicion a "legal standard of proof" and links that to "legal burden of proof", which redirects here. Perhaps there should be an article on "legal standards" that is more general than this one? Joriki (talk) 09:03, 9 July 2020 (UTC)

Two points about the book excerpt you linked to:

• After stating that a 1925 decision linked probable cause to preponderance of evidence (and equating this with >50%), the book goes on to state that a 1983 decision "weakened the degree of certainty necessary for a finding of probable cause". That would suggest that the 51% statement in the article is wrong.
• The book says "Preponderance of the evidence is, however, a much tougher level of proof than the reasonable suspicion burden", which makes reasonable suspicion sound like a type of burden of proof. I'm not saying that it is, just that this article doesn't seem to be alone in blurring the distinction.

Joriki (talk) 09:16, 9 July 2020 (UTC)

Planning to revert back to last good version on 14 February 2019 due to heavy vandalism over past 20 months

Whomever rewrote this in terms of "duty" clearly has no comprehension of the difference between a duty and an obligation. They need to go read some of the writings of Wesley Newcomb Hohfeld. This article has been heavily vandalized over the past 20 months; entire sections have been deleted by vandals and no one noticed at the time. I propose to revert to the last good version on 14 February 2019. Any objections?

Gibberish

I think it is possible to conclude - beyond reasonable doubt - that this article is pitifully weak. It is obscure in expression, and (as far as one can tell given how badly written it is) inaccurate. Burraron (talk) 13:10, 24 May 2021 (UTC)

“Standard of proof” versus “burden of proof”

These are different things and I think should be treated separately, though perhaps in the same article. The terms are not interchangeable. The present article is largely about the standard of proof. It talks a bit about the burden of proof towards the end

The standard of proof is the degree of certainty with which a proposition must be demonstrated: how certain it must be. The burden of proof is the question of who must adduce evidence of the relevant proposition to the relevant standard.

In most cases the burden falls on the prosecution or plaintiff - being the person making the existential claim. But there are circumstances where it may shift to the defendant.

For example, the case of the duck-shooting accident: it can be established beyond reasonable doubt that each of Person A and Person B discharged a gun in the direction of Victim X, believing him to be a duck. Victim X was hit once. It is found, beyond reasonable doubt that one of Person A or Person B was responsible, but as the bullet was not recovered, and there is no evidence as to which of the shooters it was.

A conventional analysis would say that neither shooter can be proved beyond reasonable doubt (or even more likely than not) to have fired the accurate bullet, and that both should be acquitted. I believe the court here may reverse the usual burden of proof and invite each defendant to prove — to what standard it is not clear — it was not her. If neither can, then both will be convicted. ElectricRay (talk) 18:12, 7 August 2021 (UTC)

Full view of the subject

Hello User:Melbguy05. In what way do you think the section discussing the Australian civil proof standard does not provide a full view of the subject? What suggestions for improvement do you have? Jack4576 (talk) 14:54, 5 July 2023 (UTC)

@Jack4576: For starters, the introduction has no information on the balance of probabilities. The introduction should say in Australia the standard of proof is the balance of probabilities. Quote Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities."

The section incorrectly states that "in Australia, the terms Briginshaw standard, civil standard, and balance of probabilities all refer to the same thing". From the Federal Court of Australia - Full Court "The so-called Briginshaw test does not create any third standard of proof between the civil and the criminal. The standard of proof remains the same, that is proof on the balance of probabilities." a quote from Qantas Airways Limited v Gama [2008] FCAFC 69. Melbguy05 (talk) 10:45, 8 July 2023 (UTC)

Yes. -because- the Briginshaw standard is -synonymous- with the balance of probabilities; when judges discuss the ‘briginshaw standard’ they are not discussing a this standard, they are discussing the balance of probabilities/civil standard/Briginshaw standard

Is this clear? Jack4576 (talk) 12:54, 8 July 2023 (UTC)

@Jack4576 and @Melbguy05 what’s going on here? Can I help? — MaxnaCarta  ( 💬 • 📝 ) 06:05, 9 July 2023 (UTC)

@Jack4576 I actually have no idea what’s going on in this article and haven’t reviewed the history properly. I can see you and MG are reverting each other. I’m not an admin and have no authority over anyone but I’d encourage both of you to stop editing this for a bit and let’s work out the issue together so as not to cause an edit war. — MaxnaCarta  ( 💬 • 📝 ) 06:07, 9 July 2023 (UTC)

I'd appreciate your third opinion here User:MaxnaCarta

My view is that because Wikipedia has an international audience, the term 'balance of probabilities' runs the risk of misleading international readers, as it has a different meaning in Australia as in other countries such as the USA and the UK. Its therefore essential to an explanation of the Australian balance of probabilities that it include a discussion of the Briginshaw standard and how it affects the way 'balance of probabilities' is interpreted as the Australian civil standard. Many sources and judgements use the term 'briginshaw standard' interchangeably synonymously with BoP and the civil standard; in cases where the civil allegations are relatively serious.

For context, part of the reason for this dispute is because its wikilinked from Ben Roberts-Smith. Some editors are unhappy with the way 'balance of probabilities' has been qualified in that article by an attendant explanation of the Briginshaw standard. It also used to wikilink to the USA explanation of the civil standard, which for various reasons would mislead a reader as to the standard that would have applied in the BRS case.

I attempted to rectify this by writing this section on Australian civil standards of proof; with the prose above explaining the BoP standard; and that Briginshaw is not seen as a 'third standard' of proof in Australia, and instead being incorporated within the BoP standard. My view is that the prose is fine as drafted. It seems to me that User:Melbguy05 sees Briginshaw as a separate standard of proof (please correct me if I'm wrong Melbguy05); I'm not of that view, and I think the sources establish the faults of that view. I think its important that international readers appreciate the particularities of civil proof in Australia, as its quite different to the USA and UK (it has some similarities in operation with Canada, I intend to add that in future but haven't gotten round to it yet.)

Jack4576 (talk) 06:15, 9 July 2023 (UTC)

@Melbguy05 please review if what Jack said is accurate. If not, what you disagree with and desired outcome. I’ll then assess both sides and provide my opinion. — MaxnaCarta  ( 💬 • 📝 ) 09:42, 9 July 2023 (UTC)

@Jack4576 As written, your contributions look good to me. However, I believe that you need to improve in one particular area, namely the frequency with which you write factually accurate contributions without citing a trustworthy secondary source. EG: The criminal burden of proof in Australia is BRD. True, but this needs an appropriate source. Statutory provisions are primary sources, and citing them is interpretative and original research. There are different standards here compared to law school or practice. I'm not sure if you are working as a lawyer, but if so, the client pays us to interpret the law and write advice. They don't need secondary sources; they just want a clear answer. I see you providing that. Here, though, you need to add a secondary source. Otherwise, people will tag your contributions with a CN template or even remove them. @Melbguy05 That's my opinion on this; ping me if you have further issues. — MaxnaCarta  ( 💬 • 📝 ) 00:48, 10 July 2023 (UTC)

Maxna I respectfully disagree with the notion that BRD needs a source as it’s a fact that’s about as well known as water being wet. If another editor wants to add one though of course I wouldn’t object.

Regarding primary sources, let’s have that discussion another time. I think the core issue of avoiding WP:OR has been avoided, which is always the attendant danger of primary sources. Jack4576 (talk) 00:57, 10 July 2023 (UTC)

I’m not removing the contributions. I’m also not telling you what to do as I’m not in authority over anyone. What I’m saying is that by following guidelines to the letter you’ll leave people less willing and able to challenge your contributions. — MaxnaCarta  ( 💬 • 📝 ) 09:04, 10 July 2023 (UTC)

Yes don’t worry I know I know.

I don’t follow guidelines ‘to the letter’ I read them in conjunction with the 5 pillars. People will always challenge regardless, and that’s their prerogative. Jack4576 (talk) 09:17, 10 July 2023 (UTC)

Appreciate you stepping in here Maxna, thank you Jack4576 (talk) 09:18, 10 July 2023 (UTC)