Reference- Thinking like lawyer by Fredrick

1. Burden of Proof
Law navigates through a fog of uncertainty..
•Should deal with faulty recollections, lost documents, missing
witnesses, inattentive jurors, to knowing with very much
confidence what actually took place months or years earlier.
•In trying to assess what law should apply to the facts lawyers and
judges face a world of conflicting precedents, vague statutes,
substantive disagreement, and a host of additional obstacles
•(Uncertainty)

2. •Legal system is also complex(Separation of Power)
Appellate courts must take account of the tasks assigned to
trial judges and trial juries,
•federal courts are constitutionally required to be cognizant of
the proper domains of state courts and vice versa,
 courts engaged in judicial review of legislative or
administrative action need to recognize the distinct
responsibilities of legislatures and the specialized expertise of
agencies
•Job of the judge is not only to decide right, but also to
determine that whose job is it to decide what is right.
• (Uncertainty)

3. The burden of proof is the obligation of a party in a trial to
produce the evidence that will prove the claims they have made
against the other party.
Burdens may be of different kinds for each party, in different phases
of litigation.
Burden of Production:
The burden of production is a minimal burden to produce at least
enough evidence for the trier of fact to consider a disputed claim.
Burden of persuasion
After litigants have met the burden of production , they have the
burden of persuasion, that enough evidence has been presented to
persuade the trier of fact that their side is correct.
[insanity, self-defense, trespass or battery,]

4. Operation of the burden of proof is in criminal
cases,
• the prosecution must prove its case beyond a
reasonable doubt.
• But what does this mean?
•

5. Beyond reasonable doubt is a standard-set(certainty)
which tells that the claim should be proved certain
percentage in order to convict.
•Suppose,there is rule that the prosecution must prove its case such
that the jury, to convict, must be 95 percent certain of the defendant’s
guilt.
•This mean that beyond-a-reasonable-doubt standard requires that the
jury or judge have a very high degree of confidence in the defendant’s
guilt in order to convict.
• If they are not 95 percent sure, then they must render a verdict of “not
guilty.”
.” An important feature of such a high burden of proof that the 95
percent “beyond a reasonable doubt” standard can be
predicted systematically to let a large number of guilty people go
unpunished.

6. 10 people / 9 guilty/ 1 innocent
Beyond reasonable doubt standard= 95%
certainty of defendant guilt proved=90%
What Jury will decide??
Guess???

7. 10 people / 9 guilty/ 1 innocent
Beyond reasonable doubt standard= 95%
certainty of defendant guilt proved=90%
In this case if the jury is doing its job properly, then all ten defendants will
go free, because the prosecution have not met the requisite burden of proof
of 95 percent confidence in the defendant’s guilt.
In letting so many of the guilty go free, the “proof beyond a
reasonable doubt” standard may seem like a bad idea.
BUT

8. But
According to William Blackstone
“It is better that ten guilty persons escape, than that
one innocent suffer.”
10 people / 6 guilty / 4 innocent
Beyond Reasonable doubt standard = 60%
Certainty of defendant guilt proved (probability) = 80%
Then in this case all 10 people will go to prison.
6 Guilty people go to prison
Also
4 innocent also go to prison
So he says that it is worse when innocent go to prison.

9. Operation of the burden of proof is in civil case
Preponderance of evidence: A requirement that more than 50% of evidence
points toward something.
Here the plaintiff will prevail simply if he/she proves her case by a preponderance
of the evidence of more than 50% proof.
it is regrettable when a defendant who is not actually at fault is held liable and has
to pay damages.
But it is more regrettable who is injured through the fault of another and the
defendant has been mistakenly found unliable.

10. Difference of Burden of proof in Criminal case and Civil case
Criminal Case
Mistake of imprisoning
the innocent is far worse
than the mistake of
freeing the guilty
Civil Case
Mistake of wrongly
uncompensated plaintiff
is less serious than that
of a defendant
wrongfully held liable.

11. Other most widely used of law’s burdens of proof.
“Clear and convincing” evidence
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
Probable cause evidence
The police may obtain a search warrant only if they can establish “probable
cause”—to believe that the search will yield evidence of the crime they are
investigating.