tag:blogger.com,1999:blog-28755195.post8535312206913958572..comments2023-09-25T04:26:51.568-06:00Comments on The Barefoot Bum: What is a burden of proof?Larry Hamelinhttp://www.blogger.com/profile/08788697573946266404noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-28755195.post-19341477270271172142010-09-22T17:04:28.866-06:002010-09-22T17:04:28.866-06:00DagoodS continues...
Because the prosecutor or pl...<i>DagoodS continues...</i><br /><br />Because the prosecutor or plaintiff has the proof, the defendant would not have to present any evidence. Not make an opening statement, closing argument or even question a witness. And the prosecutor could still lose by not sustaining their Burden of proof. I often say, in opening statements in criminal matters to press this point, “The defendant and I could sit here and play cards, or read books throughout this trial. Never ask a question; never make a sound. And you can still find that the prosecutor has failed to present sufficient evidence to prove beyond a reasonable doubt that my client committed this crime. They must prove their case!”<br /><br />We do, though, as defense counsel, have the right to present relevant evidence—evidence that makes a fact that is of consequence to the action more probable or less probable than it would be without the evidence.<br /><br />So while the prosecutor is presenting her evidence, supporting facts toward the proposition of my client’s guilt, I present evidence to make those facts less probable. I do not have the technical legal burden to do so to prevail, but I do have a moral, ethical obligation to my client (not to mention a standard of care to avoid malpractice) to present such evidence.<br /><br />It can appear, as both sides tussle, the Burden is shifting back and forth, but it really isn’t. As a pragmatic matter, if you have a particularly damning piece of evidence, you are not going to withhold it simply because the other side has the burden.<br /><br />As you pointed out, if you can respond to an argument regarding intelligent design—do so! In a court case, you may not have to do so under the Burden, yet realistically you would anyway.<br /><br />Frankly, your point still sustains, and I didn’t respond initially because it nitpicks the minor, narrow legal use of the Burden, while what I took as your over-all position remains robust.Larry Hamelinhttps://www.blogger.com/profile/08788697573946266404noreply@blogger.comtag:blogger.com,1999:blog-28755195.post-29247369621120314322010-09-22T16:50:20.875-06:002010-09-22T16:50:20.875-06:00In the previous thread on burdens of proof, Dagood...<i>In the <a href="http://barefootbum.blogspot.com/2010/09/atheism-and-burden-of-proof.html" rel="nofollow">previous thread</a> on burdens of proof, Dagood makes an <a href="http://barefootbum.blogspot.com/2010/09/atheism-and-burden-of-proof.html?showComment=1285173925747#c529819021316743417" rel="nofollow">interesting comment</a> which seems relevant to this thread as well, and which I'm taking the liberty of reproducing in full. Because adding this preamble breaks the comment size limitation, I've split the comment in two pieces.</i><br /><br />I have noticed “Burden of Proof” can be utilized differently by various fields of study. I hesitated to comment about what it means in the legal profession, as we do not hold any copyright to the definition. A philosopher or scientist or lay person could mean something else, and I am in no position to dictate what it MUST be.<br /><br />And lawyers speak on the burden in terms people understand causing further possible confusion.<br /><br />In the legal field, the party making the claim has the Burden of Proof. Always. In a criminal matter, it is the prosecutor who has the burden to prove 1) a crime was committed and 2) by the defendant. (As you correctly point out, the Burden is not the same as the Standard of proof—i.e. “beyond a reasonable doubt” in a criminal matter.) In a civil monetary matter, it is the Plaintiff who has the burden to prove 1) the defendant is liable and 2) the plaintiff was damaged. [I hope the reader understands I am making this extremely simplistic.]<br /><br />A Burden rarely shifts, but only in specific situations; generally, it is safe to say it never shifts.<br /><br />For example, the prosecutor always has the burden, however—if the Defendant claims “alibi” then the Defendant has the burden of proving that defense—in that one instance, the burden on that sole issue has shifted. The Prosecutor is not charged with proving the Defendant does not have an alibi—i.e. does not have to prove a negative.<br /><br />Note, however, the Prosecutor still has the burden to prove the crime was committed and the Defendant committed the crime. The defense (and the same as “Affirmative Defenses”) never, ever have to be proven until the prosecutor [or plaintiff] has first proven their case.*<br /><br />*Of course there are always exceptions. For example, if there was a Statute of Limitations problem, because it is such a complete defense, and it would be infuriating to go through an entire trial only to throw out the case after all that work; Defendants bring that by motion prior to any proof. Most clients would not be happy to receive a $60,000 bill for a trial that could be avoided by a $1,000 motion.Larry Hamelinhttps://www.blogger.com/profile/08788697573946266404noreply@blogger.comtag:blogger.com,1999:blog-28755195.post-84714637912955060912010-09-22T10:49:13.616-06:002010-09-22T10:49:13.616-06:00Just to clarify, the burden of proof works to deci...Just to clarify, the burden of proof works to decide in two types of situations: <br /><br />(1) There is evidence on the question but it is so closely balanced that it is impossible to say that the preponderance is on either side. <br /><br />(2) There is no evidence on either side of the question.<br /><br />The main point to the "tie goes to the runner" analogy is that the only available options are "safe" and "out" (although I guess we sometimes used "do over" playing whiffle ball in the back yard). You are correct that the analogy doesn't work nearly as well to the situation where there is no evidence.<br /><br />One thing that is not always made clear on <i>Law and Order</i> is the "burden of production." For certain affirmative defenses like self-defense, it is the defendant's burden to produce some evidence to put the issue in question. Once the defendant has met the burden of production, the prosecution must prove beyond a reasonable doubt that the defendant was not acting in self-defense.Vinnyhttps://www.blogger.com/profile/08955726889682177434noreply@blogger.com