[lit-ideas] Re: Grice v Grice
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Sun, 13 Dec 2015 15:03:00 +0000 (UTC)
viii. The court has long operated with a careful respect for the onus
probandi of the Roman and civil law systems.>
JLS writes much else on the 'burden of proof' and its alleged importance.
Against this, certain simple considerations lead to the conclusion that the
'burden of proof' usually plays no decisive role in resolving legal issues.
The "onus probandi" translates as 'burden of proof'. The phrase 'burden of
proof' has been used in various senses by judges over the years, sometimes in
ways that are probably confused. Some of this confusion arises from taking
'burden of proof' as a shorthand for 'the burden and standard of proof'. But
the clearest way to approach issues of 'proof' in legal contexts is to separate
out clearly the 'burden of proof' from the 'standard of proof'. The 'burden of
proof' and the 'standard of proof' provide two distinct but mutually exhaustive
ways to resolve any legal issue.
In most civil cases, the 'standard of proof' is 'on the balance of
probabilties'. Where evidence is sufficient to decide an issue 'on the balance
of probabilities', that issue is decided according to the 'standard of proof'
as this standard is accordingly satisfied - in such cases, the issue is not
decided according to the 'burden of proof' at all, and the 'burden of proof'
can be said to play no part in deciding the issue in so far as it has been
decided on the evidence (we may say the 'burden of proof' may have played a
procedural role in that the party bearing the 'burden of proof' will generally
begin before the party that does not bear the burden of proof - but this
procedural role will not have decided the issue, as the evidence that satisfies
the standard of proof may come from either party).
As most cases before the courts are decided because evidence on most issues
satisfies the 'standard of proof', we may say most issues are decided without
reference to the 'burden of proof' and in these cases the 'burden of proof' is
simply a default rule that waits in the wings for the opportunity to come on
stage if the 'standard of proof' is not satisfied. That is also to say, the
'burden of proof' is a default rule but it mostly plays no decisive role in
resolving legal issues as the 'standard of proof' is so often satisfied.*
Of course, we just ignore all this fairly basic stuff and bang on regardless
about the 'burden of proof' and its so-called 'analysis', and even bring in
Bayesianism and a host of other things quite foreign to how things are argued
out and resolved in courts (as Eric indicates).
DL*What is true for civil cases is substantially true for criminal cases also:
a main difference is that the higher 'standard of proof' in criminal cases
means there are many cases where the prosecution offer 'no evidence' because
their evidence would not likely satisfy the higher 'standard of proof' - when
'no evidence' is offered for this reason, the case is technically decided
according to the 'burden of proof' [not the 'standard of proof'] but in reality
the reason 'no evidence' is offered is due to the 'standard of proof' as this
has affected the prospects of successful prosecution.
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