burden of proof

Definition of burden of proof

Noun

burden of proof (plural burdens of proof)

1. (law) The duty of a party in a legal proceeding to prove an assertion of fact; it includes both the burden of production and the burden of persuasion; the onus probandi

Further reading

The burden of proof (Latin: onus probandi) is the obligation to shift the assumed conclusion away from an oppositional opinion to one's own position. The burden of proof may only be fulfilled by evidence.

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." This is a statement of a version of the presumption of innocence which underpins the assessment of evidence in some legal systems, and is not a general statement of when one takes on the burden of proof. The burden of proof tends to lie with anyone who is arguing against received wisdom, but does not always, as sometimes the consequences of accepting a statement or the ease of gathering evidence in its defence might alter the burden of proof its proponents shoulder. The burden may also be assigned institutionally.

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.

The burden of proof is an especially important issue in law and science.

Types of burden

There are generally two 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 its claim. For example, the presumption of innocence places a legal burden upon the prosecution to prove all elements of the offence (generally beyond a reasonable doubt) and to disprove all the defences except for affirmative defenses in which the proof of nonexistence of all affirmative defence(s) is not constitutionally required of the prosecution.[1]
• 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 evidence of some state of affairs. This creates an evidentiary burden upon the opposing party to present evidence to refute the presumption.

References

1. Patterson v. New York, 432 U.S. 197 (1977)