burden of proof (law)


  • [12] The “beyond reasonable doubt” standard, used by criminal juries in the United States to determine guilt for a crime, also contrasts with probable cause which courts hold
    requires an unquantified level of proof well above that of probable cause’s 51%.

  • Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of
    a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency The Briginshaw principle is sometimes incorrectly referred to as the Briginshaw standard of proof,[38]
    in Qantas Airways Limited v. Gama Justices French and Jacobson stated the “Briginshaw test does not create any third standard of proof between the civil and the criminal.

  • Some courts and scholars have suggested probable cause could, in some circumstances, allow for a fact to be established as true to a standard of less than 51%[citation needed],
    but as of August 2019, the United States Supreme Court has never ruled that the quantification of probable cause is anything less than 51%.

  • However, where the law does not stipulate a reverse burden of proof, the defendant need only raise the issue and it is then for the prosecution to negate the defence to the
    criminal standard in the usual way (for example, that of self-defence[28]).

  • [47][Note 1] In the end, despite the high burden of proof required, Fairfax won the trial, with Besanko ruling that it was proven he “broke the moral and legal rules of military
    engagement and is therefore a criminal”.

  • In this case, D is presumed innocent o 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.

  • Legal standards for burden of proof[edit] Some evidence[edit] Per Superintendent v. Hill (1985), in order to take away a prisoner’s good conduct time for a disciplinary violation,
    prison officials need only have “some evidence”, i.e., “a modicum of evidence”; however, the sentencing judge is under no obligation to adhere to good/work time constraints, nor are they required to credit time served.

  • Definition A “burden of proof” is a party’s duty to prove a disputed assertion or charge, and includes the burden of production (providing enough evidence on an issue so that
    the trier-of-fact decides it rather than in a peremptory ruling like a directed verdict) and the burden of persuasion (standard of proof such as preponderance of the evidence).

  • Beyond reasonable doubt[edit] Main article: Reasonable doubt This is the highest standard used as the burden of proof in Anglo-American jurisprudence and typically only applies
    in juvenile delinquency proceedings, criminal proceedings, and when considering aggravating circumstances in criminal proceedings.

  • [citation needed] Though it is beyond the scope of this topic, when courts review whether 51% probable cause certainty was a reasonable judgment, the legal inquiry is different
    for police officers in the field than it would be for grand jurors.

  • Standard of proof in the United States Burden of proof refers most generally to the obligation of a party to prove its allegations at trial.

  • If it did so, this would have the potential to constitutionalise the ‘beyond reasonable doubt’ standard in criminal proceedings.

  • [46] An example of the Briginshaw principle applied in practice is the case of Ben Roberts-Smith where, due to the gravity of the allegations, Fairfax Media was required to
    rely on stronger proof than in the context of a normal allegation to win their case.

  • [55] • The state must prove the critical facts of the case to the appropriate level of certainty.

  • 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.

  • It is also the standard of proof by which the defendant must prove affirmative defenses or mitigating circumstances in civil or criminal court in the United States.

  • The civil standard is also used in criminal trials in relation to those defenses which must be proven by the defendant (for example, the statutory defense to drunk in charge
    that there was no likelihood of the accused driving while still over the alcohol limit[27]).

  • Another high-level way of interpreting that is that the plaintiff’s case (evidence) be 51% likely.

  • [16] Compared to the criminal standard of “proof beyond a reasonable doubt,” the preponderance of the evidence standard is “a somewhat easier standard to meet.”[15] Preponderance
    of the evidence is also the standard of proof used in United States administrative law.

  • The main reason that this high level of proof is demanded in criminal trials is that such proceedings can result in the deprivation of a defendant’s liberty or even in their

  • Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that one would be willing to rely and act upon it without hesitation in the most important
    of one’s own affairs.

  • 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.

  • 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.

  • For example, the presumption of innocence in a criminal case 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.

  • 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.

  • [53] Examples Criminal law[edit] Criminal cases usually place the burden of proof on the prosecutor (expressed in the Latin , “the burden of proof rests on who asserts, not
    on who denies”).

  • MSPB defines the standard as “The degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested
    fact is more likely to be true than untrue.” One author highlights the phrase “more likely to be true than untrue” as the critical component of the definition.

  • [13] Examples of a police officer’s truth-certainty standards in the field and their practical consequences are offered below: • no level of evidence required: a knowing and
    voluntary consent-based encounter between police officer and another person • reasonable articulable suspicion of criminal activity required: an involuntary stop initiated by the officer to briefly detain, attempt to question, and pat down
    outer clothing of a person of interest to police.

  • [citation needed] Preponderance of the evidence[edit] Preponderance of the evidence (American English), also known as balance of probabilities (British English), is the standard
    required in civil cases, including family court determinations solely involving money, such as child support under the Child Support Standards Act, and in child custody determinations between parties having equal legal rights respecting a

  • The task for the tribunal then when faced with serious allegations is to recognize that their seriousness generally means they are inherently unlikely, such that to be satisfied
    that a fact is more likely than not the evidence must be of a good quality.

  • The standard does not require the fact-finder to weigh conflicting evidence, and merely requires 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.

  • This standard is also known as “clear, convincing, and satisfactory evidence”; “clear, cognizant, and convincing evidence”, and is applied in cases or situations involving
    an equitable remedy or where a presumptive civil liberty interest exists.

  • 6(2) so long as confined within reasonable limits, considering the questions: o What must the prosecution prove to transfer burden to the defendant?

  • Clear and convincing evidence is the standard of proof used for immunity from prosecution under Florida’s controversial stand-your-ground law.

  • A more precise statement is that “the weight [of the evidence, including in calculating such a percentage] is determined not by the amount of evidence, but by its quality.”[15]
    The author goes on to affirm that preponderance is “merely enough to tip the scales” towards one party; however, that tilt need only be so slight as the weight of a “feather.” Until 1970, it was also the standard used in juvenile court in
    the United States.

  • [12] 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.

  • [9] Reasonable indications[edit] “Reasonable indication (also known as reasonable suspicion) is substantially lower than probable cause; factors to consider are those facts
    and circumstances a prudent investigator would consider, but must include facts or circumstances indicating a past, current, or impending violation; an objective factual basis must be present, a mere ‘hunch’ is insufficient.

  • In civil courts, aggravating circumstances also only have to be proven by a preponderance of the evidence, as opposed to beyond reasonable doubt (as in criminal court).

  • [38] In Australia, the ‘balance of probabilities’ involves considerations that the evidence required to establish a fact at the civil standard will vary with the seriousness
    of what is being alleged.

  • Probable cause[edit] Main article: Probable cause Probable cause is a higher standard of proof than reasonable suspicion, which is used in the United States to determine whether
    a search, or an arrest, is unreasonable.

  • 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 unless and until proven guilty.

  • Probable cause can be contrasted with “reasonable articulable suspicion” which requires a police officer to have an unquantified amount of certainty the courts say is well
    below 51% before briefly detaining a suspect (without consent) to pat them down and attempt to question them.

  • However, when exceptions arise and the burden of proof has been shifted to the defendant, they are required to establish a defense that bears an “air of reality”.

  • The burden of proof requires a party to produce evidence to establish the truth of facts needed to satisfy all the required legal elements of the dispute.

  • [31] The Australian constitution does not expressly provide that criminal trials must be ‘fair’, nor does it set out the elements of a fair trial, but it may by implication
    protect other attributes.

  • The criminal standard was formerly described as “beyond reasonable doubt”.

  • [11] Reasonable suspicion[edit] Main article: Reasonable suspicion Reasonable suspicion is a low standard of proof to determine whether a brief investigative stop or search
    by a police officer or any government agent is warranted.

  • As the above description of the American system shows, anxiety by judges about making decisions on very serious matters on the basis of the balance of probabilities had led
    to a departure from the common law principles of just two standards.

  • However, the case of Kirk constrains the way that State courts may operate during criminal trials per the Kable Doctrine.

  • 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”.

  • [12] 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, and may give rise to the level of probable cause.

  • That standard remains, and the words commonly used, though the Judicial Studies Board guidance is that juries might be assisted by being told that to convict they must be
    persuaded “so that you are sure”.

  • [54] The presumption of innocence means three things: • With respect to the critical facts of a case the defendant has no burden of proof whatsoever.

  • If the subject threshold level of reliability has been met by the presentation of the evidence, then the thing is considered legally proved for that trial, hearing or inquest.

  • [48][49][50] Melbourne Law School professor Jeremy Gans, has noted that for particularly serious allegations, such as sexual assault, “It’s hard to see how the Briginshaw
    principle is much different to beyond reasonable doubt”.

  • The “some credible evidence” standard is used as a legal placeholder to bring some controversy before a trier of fact, and into a legal process.

  • • probable cause of 51% truth or higher required that a crime was committed by a specific person: arrest and/or grand jury indictment of that person.

  • [12] The officer must be prepared to establish that criminal activity was a logical explanation for what they perceived.

  • The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding
    are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

  • Juries are required to make findings of guilt ‘beyond reasonable doubt’ for criminal matters.

  • [57] 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.

  • [citation needed] Criminal standard[edit] The criminal standard in Australia is, ‘beyond reasonable doubt’.

  • Some courts have said it should be a new standard while others have equated it with the “reasonable suspicion” of the Terry stop.

  • A more definite standard of proof (often probable cause) would be required to justify a more thorough stop/search.

  • “[10] The reasonable indication standard is used in interpreting trade law in determining if the United States has been materially injured.

  • Prior to the decision of the House of Lords in Re B (A Child) [2008] UKHL 35 there had been some confusion – even at the Court of Appeal – as to whether there was some intermediate
    standard, described as the ‘heightened standard’.

  • [6] The burden of persuasion should not be confused with the evidential burden, or burden of production, or duty of producing (or going forward with evidence)[7] which is
    an obligation that may shift between parties over the course of the hearing or trial.

  • [56] 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).

  • [43] The Briginshaw principle was articulated by Dixon in that case in these terms:[44] …it is enough that the affirmative of an allegation is made out to the reasonable
    satisfaction of the tribunal.

  • Courts have traditionally interpreted the idea of “a fair probability” as meaning whether a fair-minded evaluator would have reason to find it more likely than not that a
    fact (or ultimate fact) is true, which is quantified as a 51% certainty standard (using whole numbers as the increment of measurement).

  • [38] Other standards for presenting cases or defenses Air of reality[edit] See also: R v Cinous The “air of reality” is a standard of proof used in Canada to determine whether
    a criminal defense may be used.

  • 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.


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Photo credit: https://www.flickr.com/photos/meteomarco/5955501969/’]