Talk:Burden of proof
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The burden of proof rests with the person who wants to change someone's mind. That person must take on the burden of proving something to a person.
A person with a nonstandard theory who wants it to become the standard theory has to convince a lot of people; in that case, he does have the burden of proving it to enough people to get that recognition. If he doesn't care whether it becomes the standard theory, he doesn't have the burden of proof.
For instance, say that someone develops a nonstandard theory that disagrees with a standard theory. Here are the possibilities :
- The proponents of both don't care to change minds on the other side, so no one takes the time and energy to do so (no one takes the burden of proof).
- The proponents of only one side want to convince those of the other side, so they take the time and energy to do so (they take the burden of proof).
- The proponents of both sides want to convinve those of the other side, so both take the time and energy to do so (both sides take on the burden).
12.214.45.9 20:41, 30 May 2004 (UTC)
- The legal use is somewhat primary, in that the colloquial use is (I believe) derived from it. In any case, the way you wrote it was fairly non-encyclopedic. I've tried to put together a kind of rump format for addressing some of the issues you raise. More effort will probably be needed, but it should be written like an encyclopedia article. VV 09:19, 1 Jun 2004 (UTC)
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- An encyclopedia is not made to sound or look "encyclopedic" (whatever that means). It is made to allow people to learn about various topics. If a presentation is easy to understand, adding in overblown words and grammar to make it sound falsely academic is abhorrent ! It goes against the purpose and spirit of an encyclopedia. It is a plague of logorrhoea (see the examples in the article) or pleonasm which makes it unapproachable unless the reader knows legal or logical terminology fairly well and likes slogging through overwordy grammar. Occam's Razor applies to writing.
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- If you want to say that the legal use was the original use, you can say it regardless of the order of presentation.
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- I only raised one issue (about changing someone's mind) and I assume that you didn't actually read what you replied to on this page. One issue was somehow transformed into "the issues" and was totally obliterated in the article (you weren't "addressing" the issue at all). It looks like you were angry that I dared change the article and hastily wrote a non sequitur justification.
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- 12.214.45.9 02:06, 6 Jun 2004 (UTC)
[edit] expand on "person who claims" notion
The article is good. But I think the general definition of "burden of proof" needs to be expanded. Indeed, the burden of proof rests on the prosecution because of the ASUMPTION of "innocent until proven guilty". (Note other cultures do not make this assumption, thereby shifting the burden of proof to the defense.
As for the general case, we should note the two examples: "I exist" "I don't exist" The article is spot on that the burden of proof lies with the claimant, regardless of how common sense the claim is. One might want to say that the burden of proof lies with the "default" position. However, we are outside the legal context here. The person who claims "I exist" has no more justification above the person who claims "I don't exist" aside from the fallacious support of appeals to popularity and common sense.
I'll let the article progress, and maybe expand on this notion in the future and see what everyone thinks.
[edit] Merger
I merged Standard of proof. See Talk:Standard of proof for reference. (Sam Spade | talk | contributions) 16:59, 13 Mar 2005 (UTC)
[edit] Shadow of a doubt
I was surprised to find that the level of "beyond a shadow of a doubt" is not discussed in this article. I am under the impression that it is a higher standard than "beyond a reasonable doubt", and that it is typical to be the required level of certainty for capital cases. But I am a total amateur in this area, and would love for a more informed person to write something here about it (or at least insert a link to a different article). --Keeves 23:34, 2 January 2006 (UTC)
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- In American law, there is basically no such burden of proof at the level of "beyond a shadow of a doubt." In the USA, at least, the highest standard is "beyond a reasonable doubt." Yours, Famspear 19:43, 11 March 2006 (UTC)
"beyond a shadow of a doubt" is colloquial not legal - I would question whether 'doubt' is actually able to cast a shadow as it is not tangible. —Preceding unsigned comment added by 193.63.217.208 (talk • contribs) 5 December 2006
Although "beyond a shadow of a doubt" has no legal signifigance, the US Supreme Court has recognized that "residual doubt" may play a role in the minds of jurors sitting in a capital case during the penalty phase. See for example Lockhart v. McCree 476 U.S. 162, 106 S.Ct. 1758 U.S.Ark.,1986. —Preceding unsigned comment added by 24.229.53.165 (talk • contribs) on 13 February 2007.
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- Note: A precise parallel citation on that U.S. Supreme Court decision is Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986). Yours, Famspear 16:41, 13 February 2007 (UTC)
[edit] Reasonable Suspicion
This analysis is totally missing the reasonable suspicion standard. If we are putting probable cause as a burden of proof (which seems troublesome to me because we are talking about burden of proof at trial in one instance and burden of proof necessary to conduct an arrest in another) then reasonable suspicion should be included as a level of proof directly below probable cause. I would put in reasonable suspicion because many times it is the level of proof necessary to conduct a seizure or search as a result to probable cause.
For example, reasonable suspicion elevates an encounter between a citizen and a police officer beyond the realm of consensual encounter into the realm of brief investigative stops/searches (Terry stops/frisks). Based on reasonable suspicion an intermediate level of a search and/or seizure under the forth amendment can take place. Then evidence can be obtained that would give the officer probable cause to conduct a costodial arrest.
Without Reasonable Suspicion, there can be no probable cause in this context, because probable cause is necessarily predicated on the evidence that is obtained as a result of reasonable suspicion.
Obviously in other contexts, such as where an officer personally witnesses a crime, his level of suspicion raises to probable cause, skipping reasonable suspicion.
If you are putting probable cause in as a burden of proof, you should also include reasonable suspicion.
-smvans7
[edit] The Science And Other Applications example is weak
This example asserts a burden of proof for "unusual" claims. But contradicts him/herself with example from SETI where the author relieves the "unusual" claim of the burden, showing the inherent subjectiveness of the concept "unusual" and its lack of validity in science or logic. Basically, no assertion has any more of a "burden of proof" than any other.
I looked at about 1/2 dozen sites that asserted the Burden of Proof principle was valid. They all used either a criminal legal system analogy (to innocent until proven guilty) or a formal debating contest analogy (score points when your team has the obligation to assert a point, point to the opponent if you fail -- they need not succeed). Argument by Analogy is itself a fallacy. The reason these analogies do not apply is that they are unusual cases where we have an exception to our normal method of finding truth: which is the preponderance of evidence is the criteria (as in civil court). These exceptions are cases where Special Pleading actually IS valid -- the defendant and the defending debators are given an advantage for good reasons. But in the absence of these exceptional cases, Special Pleading is a fallacy. A few fallacy sites list Burden of Proof as a fallacy.
They all should for the following reason: Suppose I propose the hypothesis that a specific type of alcoholic beverage was brewed by pre-columbian indians. There are two possibilities, this drink was brewed, or it was not. Alternatively, I can propose the hypothesis that this alcoholic beverage was not brewed by pre-columbian indians. The two options are the same. As both these hypotheses are assertions about reality, the correct thing to do is to test the assertion by looking at the evidence. Empirically, there are a lot of possible conseqeunces of the test, ranging from no evidence, contradictory evidence, contradicting evidence, weak evidence one way or another, or strong evidence one way or another. Suppose the result was weak evidence for the existence of the beverage. By the burden of proof standard (which other sites apply to any asserter), the correct conclusion to reach about the world depends upon the framing of the question. By the burden of proof standard, one should conclude the beverage was not brewed if one starts with the first hypothesis, and that it was based on the second. The problem gets even worse with the case of no evidence. By the burden of proof standard, in one case no evidence leads to concluding the beverage was brewed, and in the other case that it was not, when the correct conclusion in this situation is that we have no idea.
I think this section should be rewritten to say that "burden of proof" has no application outside criminal law.
- The problem is not that the concept of "burden of proof" isn't used outside of law; it's that the section is not neutral. Instead of explaining a particular "burden of proof" policy in various situations, it should cite others' views of such policies. -- Beland 01:23, 4 October 2006 (UTC)
Another view: I agree that the science examples are weak--the author was clearly attempting some levity. However, it goes to far to assert bias on the author's part. Yes, the concept of proof is used a bit differently, but it is important that the very reason that the American legal system operates under the assumption of "innocent until proven guilty", is that it was informed by the "age or reason" underway when the nation was formed. Indeed, most of the founding fathers forcefully espoused deist religious beliefs, which asserted that while God is real, the only Revelation that can be trusted is the Creation itself--anything else can be forged or confounded.
Ultimately, this all goes back to the writing of Sir Francis Bacon, who first brought the notion of what we would call scientific skepticism to a wide audience. The phrase "burden of proof" today is used mostly in the law, but it is tighly coupled to a phrase of currency in scientific circles "Extraordinary claims require extraordinary evidence". The assertion of the reality of extraterestrial life can not be clearly supported or refuted with current knowledge, so it simply cannot be defended to those with whose religious views it conflicts. One can CHOOSE to believe this notion or not. But if I were to assert a novel model describing the operation of gravity (as has been recently put forward to explain certain cosmological measurements) this would require more than a cohertent theory--it would require substantial, repeatable, verifiable evidence.
The whole point of which is that, sad though it is to accept, the human mind is NOT the perfect, intelligently designed thinking machine we would like it to be. Our brain takes so many shortcuts and makes so many errors, that after 40,000 years of stumbling, a few people (Like Bacon) started writting down ways we can keep our brains from fooling us. This one event (the rise of scientific thinking) ended the dark ages, brought about the enlightenment, and in the blink of the historical eye, took us to the Moon and back. "Burden of Proof" is simply the law's version of skepticism, and it acknowledges that proof is not an absolute. Just as a challenge to gravitation requires more evidence than see, the notion the aliens could, in theory, exist, a challenge to the plaintiff's life requires more evidence than a challenge to his pocketbook.
Which brings me to a question that I have never seen answered: Does the American legal system consider quality of proof in sentensing? I do not believe so, but in this scientific age, it ought to. For example, a man convicted of murder based solely on a single human testimony might not qualify for the same swift execution as a man who pulls out a machine gun at the mall and winds up splattered with DNA evidence. Both might be guilty "beyond a reasonable doubt", but one is case is less refutable than the other, as a flood of recent DNA evidence cases attests.CreggH 16:15, 22 November 2006 (UTC)
[edit] Civil Cases - BOP Not Always Plaintiff's
Maybe too in depth for this otherwise good definition but, there are times in civil matters, following the presentment of a prima facie case by the plaintiff, where the burden of proof may fall on the defendant during trial. This is known as the "burden shifting rule" and is most often seen in civil rights and IRS cases. So, a broad statement claiming that it is the sole responsibility of the plaintiff to provide the BOP, is technically not always true.
[edit] Origin of Balance of Probabilities
Does anyone know when BoP passed into English law? I'm to be involved in a hearing soon that hinges on it, and don't want to look like a fool if/when I'm asked whether I understand the principle.James Casey 15:36, 15 December 2006 (UTC)
[edit] "Beyond a Reasonable Doubt"
It's true that one's person's thoughts expressed can change anothers, but (correct me if I'm wrong) in the case of reasonable doubt, wouldn't the person have to have had some doubt in their mind in the first place? You can't just automatically change your opinions within a matter of minutes without having some sort of doubt already installed, can you? It's almost hypocritcal, in a way. Have any of you read 12 Angry Men, or seen it in the theater? This story is a prime example of how the transfer of reasonable doubt works in the court system. I'm currently writing an essay for my Literature teacher about reasonable doubt, with the play as the essay's basis. It just seems that the term "beyond a reasonable doubt" will remain an abstract phrase; no one person will ever have the definition proper to fit each of us, not until we all become the same. —The preceding unsigned comment was added by Lil WhizKid (talk • contribs) 00:05, 27 January 2007 (UTC).
- Is there something in the article that you think needs to be improved? Oh, and please sign your posts by typing four tildes like this ~~~~ so that we can read who said what, and when. It makes it easier for people who are responding later. Thanks. ElinorD 22:30, 5 February 2007 (UTC)
[edit] Clear and Convincing Evidence (CCE)
Are you sure about the clear and convincing evidence concept? I thought that the BOP of CCE was lower than that of proof by preponderance of evidence (PPE). For example if police believe that a crime is taking place or that there is evidence of a crime in a home to be searched, there would have to be CCE to convince a judge that a search warrant needs to be issued.
Or there could be CCE enough to petition a judge that a person needs to be involunterily examined (In Florida it's called "Baker Acting" someone).
It should be noted that judges often err on the side of caution in cases like these, nothwithstanding the rights of the accused or target (respondent). —The preceding unsigned comment was added by Reyn562 (talk • contribs) 05:51, 18 February 2007 (UTC).
Delete last discussion (about CCE); I guess I was wrong.
[edit] Science and other applications week, and also unreferenced
The latter complaint flows from the former. The claims in this section match the misconceptions of amateur retoricicians who attempt to apply burden of proof to ontological discussions rather than anything accepted by mainstream philosophy of science. If I am incorrect on this, can someone put some good references in there? And if not, is there any argument to not nix this section? Mathlaura 22:51, 3 November 2007 (UTC)
