Talk:Burden of proof (law)

message: I merged Standard of proof. See Talk:Standard of proof for reference. (Sam Spade | talk | contributions) 16:59, 13 Mar 2005 (UTC)
thread_title:  Merger 

message: 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)
replies: text: 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)
replies: text: 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)
thread_title:  Shadow of a doubt 

message: 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
*The section begins with the statement "Reasonable suspicion is a low standard of proof in the U.S. to determine whether a brief investigative stop or search by a police officer ..." The reference to search is incorrect. A Terry stop allows officers to detained a person for iverstigation if the officers have a reasonable articulable suspicion that the defendant was, is, or will be engaged in criminal activity. The officer may also frisk the suspect for weapons if the officer has a reasonable articulable suspicion that the person may be armed.  A Terry stop does not automatically allow an officer to frisk the detainee for weapons and under no circumstances would reasonable suspicion justify a search.
**Are there available resources to clear up these points and write them into the article? Piratejosh85 (talk) 18:26, 19 June 2009 (UTC)
thread_title:  Reasonable Suspicion 

message: 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)
thread_title:  The Science And Other Applications example is weak 

message: 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)
thread_title:  Origin of Balance of Probabilities

message: 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)
replies: text: 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)
replies: text: I'm not part of this conversation thread, but I did just add an EssayLike tag to this section of the article because upon reading it I was struck with how unsourced and unencyclopedic it was. It reads more like an argument for a certain interpretation of the concept than an objective introduction to various possible interpretations. At the very least, its prose needs to be cleaned up to be written in the third person and broken into cite-able chunks of text. Tollsjo (talk) 08:48, 31 May 2009 (UTC)
thread_title:  "Beyond a Reasonable Doubt" 

message: 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)
thread_title:  Clear and Convincing Evidence (CCE) 

message: This article seems to be all about the law.  Science needs to be brought in.  See the next comment for first paragraph talk.Piratejosh85 (talk) 23:00, 8 December 2008 (UTC)
thread_title: agree

message: This section reads like a term paper, or like lecture notes. It seems to be a synthesis of dictionary definitions to advance a position about reasonable doubt. It may be a correct position, but it seems unencyclopedic to me. cmhTC 21:07, 3 September 2008 (UTC)
thread_title:  Reasonable Doubt section 

message: My opinion is that BOP should not be limited to the law in the opening paragraph.  The law is not essential to the definition.
===Agree===
Yea, I agree.  I went about trying to rewrite for interdiscipline, but I'm affraid I've just muddled things.  Piratejosh85 (talk) 22:58, 8 December 2008 (UTC)
thread_title: Opening paragraph

message: Yea, I agree.  I went about trying to rewrite for interdiscipline, but I'm affraid I've just muddled things.  Piratejosh85 (talk) 22:58, 8 December 2008 (UTC)
thread_title: Agree

message: Not to complain, but this article has just got really messy and is due for makeover. Piratejosh85 (talk) 23:29, 5 July 2009 (UTC)
thread_title: Reorg.

message: Although i have contributed to the sections on reasonable suspicion and probable cause these subjects arguably dont belong in an article on burden of proof. Reasonable suspicion and probable cause are the standards that must be met to justify a constitutional intrusion. However, they are not the burden of proof. If a defendant challenges evidence obtained from his detention on the grounds that the officer lacked a reasonable suspicion that the defendant was engaged in criminal activity the burden is on the state to show by the preponderance of teh evidence that the standard has beenmet. The burden of proof is not reasonable suspicion but preponderance of the evidence. --Jgard5000 (talk) 20:35, 17 September 2009 (UTC)
thread_title:  Reasonable Suspicion Probable Cause  

message: I believe the asymmetric BOP-levels in the Elvis example (given in the "Considerations"-section) to be wrong.
What we have here imho is preexisting evidence (common knowledge) that already lowered the BOP-level.
If I knew nothing about Elvis, I would need the exact same amount of evidence to prove either that he's dead or alive.
82.113.121.200 (talk) 22:55, 6 December 2009 (UTC)
replies: text: Agreed. I'll try to make it clear that conventional knowledge much be taken into account in a rewrite. Philocentric (talk) 23:09, 19 January 2010 (UTC)
thread_title:  Considerations: Elvis 

message: I think most of us agree that this article is a bit messy due to diverse applications of burden of proof.
I'd like to propose the following. 
Let's make the article for "burden of proof" a short general definition page that links to at least 2 specific and distinct applications of burden of proof; the legal application and the epistemological application. These links can be entitled "legal burden of proof" and "epistemological burden of proof".
I will take on this project and leave all content untouched until after the migration has been successfully completed.
What do you all think?
Philocentric (talk) 08:53, 11 January 2010 (UTC)
replies: text: I say go for it.  There's too much of the one and the other in this article to make it flow through a single thread.  When you do the law article, would you please consider editing down to size the section on "beyond a reasonable doubt."  I, and I know others, have long felt this is inappropriately long.  Piratejosh85 (talk) 16:22, 11 January 2010 (UTC)

text: I'll give it a week for more feedback, then make the change. My background is on the philosophy side, so I'll have to let you legal guys take care of the "beyond a reasonable doubt" section. Cheers. Philocentric (talk) 07:49, 12 January 2010 (UTC)
replies: text: Thinking more about this, I don't know if the best title for the one subdivision is really epistemological.  IMHO, that seems too broad.  It seems like the non-legal aspects of the BOP is philisophic and scientific.  If the one is titled law, others should match that level of abstraction. Piratejosh85 (talk) 16:38, 15 January 2010 (UTC)

text: I was actually thinking the same thing. "Philosophic Burden of Proof" does seems to be the better term. Philocentric (talk) 05:10, 16 January 2010 (UTC)

text: I'm still planning to get around to that migration. Give me another week. Philocentric (talk) 16:23, 16 February 2010 (UTC)
thread_title:  Cleaning things up. 

message: I hope everyone is happy with the move. Cheers. Philocentric (talk) 17:15, 16 February 2010 (UTC)
replies: text: Great job.  Thanks for your effort Piratejosh85 (talk) 18:33, 17 February 2010 (UTC)

text: Just for future reference, splits (and similarly with merges) require certain history attribution procedures to comply with Wikipedia's content licenses (the GFDL and CC-BY-SA). It's really as simple as stating in the edit summary that you are performing a split and providing a proper link to the name of the article the content is being split to when you take out the content, and a similar edit summary when you add the material to the split off page noting where you split the content from with a link back to that article. I have added  and  to this talk page and the split talk page to provide attribution. Cheers.--Fuhghettaboutit (talk) 00:18, 18 February 2010 (UTC)
thread_title:  Moved! 

message: I recently created a page on evidential burden. As Lord Bingham said in Sheldrake, evidential burden is strictly speaking not a "burden of proof" but rather a burden of raising an issue. Furthermore, the burden of persuasion is also known as the legal burden. If this article describes all burdens in the legal field (which includes both the evidential burden and the burden of persuasion), there is bound to be confusion. Therefore, if there is no objection from other learned editors, I will restrict the coverage of this article to the burden of persuasion and remove references to the evidential burden (but I may add links at the See Also section and other appropriate places). Craddocktm (talk) 09:18, 9 September 2010 (UTC)
thread_title: Evidential burden

message: I feel that the distinguishing method used in the title of the article is somewhat out of line compared to other articles under the scope of WikiProject Law, and perhaps Wikipedia at large. As such, I recommend moving the article to the title Burden of Proof (Law). The P in proof can be lower-cased, if that is proper per titular naming. Before taking any action, I wish to first propose here, on the talk page. How does everyone else feel about the idea? KirkCliff2 (talk) 20:47, 9 November 2010 (UTC)
replies: text: I am not sure about the move. The problem is that there are several burdens at law - and one of them is called "legal burden" which is the subject of this article. That is the way the Courts and lawyers refer to this particular type of burden at law. For example, see the House of Lords decision in Sheldrake v DPP:. The phrase "legal burden" appears numerous times in the judgment.Craddocktm (talk) 18:06, 15 November 2010 (UTC)
thread_title:  Move suggestion 

message: I mistakenly removed two sections, including one I removed before, explaining the Canadian burden of proof concept "air of reality." I failed to notice that the article has been changed with sub captions differentiating between US law and UK law. The part I added to US law is missing citations. I will get that. I will follow the Wikipedia article on "Law" as a template footnote the Harvard bluebook "short-form" citation format for the full names of all cases linking them to the case text on Google Scholar. While I think the better practice would be to link to the website of the court that decided the case, that may not be possible.  When trying to explain a legal concept,illustrations from the leading case, or one of them, are much better than trying to explain the concept and the abstract. That necessarily means choosing one jurisdiction over another, but that is not a dealbreaker. Da5id403 (talk) 00:24, 1 November 2011 (UTC)
replies: text: I put in the two sections below as "other". Bearian (talk) 01:30, 1 November 2011 (UTC)
thread_title:  Mea Culpa 

message: I removed the sentence to this effect from the introduction. The caption "Legal Burden of Proof" makes the reference to law redundant and the reference to science irrelevant.
On other subjects, I think a bot removed some vandalism. A person asked if it was me. No. I am working on the citation format. I want the name of the case to be directly linked to the Google Scholar webpage with the case.
Does anyone know? I need to actually underline blank spaces as part of the formal way to cite to a case that is final but not yet in print and thus not paginated. It seems Wikipedia keeps deleting them. Does anyone understand the question of what to do about it? Should I go to my personal talk page and try to get help there instead of putting it here.  — Preceding unsigned comment added by Da5id403 (talk • contribs) 01:43, 2 November 2011 (UTC)
thread_title:  Burden of Proof Especially Important in Law and Science 

message: Editors may be interested in a section recently added to the article on statistical proof in legal proceedings. This has relevance to this article. Thanks.Thompsma (talk) 22:57, 11 November 2011 (UTC)
thread_title:  Statistical proof 

message: I have added a section on the "substantial evidence" standard (which is really a standard of review rather than a standard of proof) and have also restructured the article.  Please feel free to revert any error that I may have inadvertently introduced.
Bwrs (talk) 05:19, 20 March 2012 (UTC)
thread_title:  Article restructuring 

message: https://fr.wikipedia.org/wiki/Charge_de_la_preuve_(droit). --Japarthur (talk) 04:29, 3 November 2016 (UTC)
thread_title:  French 

message: The footnote for "With respect to the critical facts of a case the defendant has no burden of proof whatsoever.", the reference in the footnote is not a source, but more like a conventional footnote. MBUSHIstory (talk) 17:14, 6 December 2016 (UTC)
thread_title:  Use of footnotes 

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thread_title:  External links modified 

message: It may be worth adding a section on the burden of proof in Catholic canon law. There is a notion there of "moral certitude" which is distinct from other sorts listed. The following is a quote from Dignitas Connubii (2005), an instruction from the Vatican on marriage nullity process:
"Art. 247 – § 1. In order to declare the nullity of a marriage there is required in the mind of the judge moral certainty of its nullity (cf. can. 1608, § 1). § 2. In order to have the moral certainty necessary by law, a preponderance of the proofs and indications is not sufficient, but it is required that any prudent positive doubt of making an error, in law or in fact, is excluded, even if the mere possibility of the contrary remains."
Nighm (talk) 08:45, 3 May 2018 (UTC)
thread_title:  Moral certitude in canon law 

message: I think it is possible to conclude - beyond reasonable doubt - that this article is pitifully weak. It is obscure in expression, and (as far as one can tell given how badly written it is) inaccurate. Burraron (talk) 13:10, 24 May 2021 (UTC)
thread_title:  Gibberish 

message: These are different things and I think should be treated separately, though perhaps in the same article. The terms are not interchangeable. The present article is largely about the standard of proof. It talks a bit about the burden of proof towards the end
The standard of proof is the degree of certainty with which a proposition must be demonstrated: how certain it must be. The burden of proof is the question of who must adduce evidence of the relevant proposition to the relevant standard.
In most cases the burden falls on the prosecution or plaintiff - being the person making the existential claim. But there are circumstances where it may shift to the defendant.
For example, the case of the duck-shooting accident: it can be established beyond reasonable doubt that each of Person A and Person B discharged a gun in the direction of Victim X, believing him to be a duck. Victim X was hit once. It is found, beyond reasonable doubt that one of Person A or Person B was responsible, but as the bullet was not recovered, and there is no evidence as to which of the shooters it was.
A conventional analysis would say that neither shooter can be proved beyond reasonable doubt (or even more likely than not) to have fired the accurate bullet, and that both should be acquitted. I believe the court here may reverse the usual burden of proof and invite each defendant to prove — to what standard it is not clear — it was not her. If neither can, then both will be convicted. ElectricRay (talk) 18:12, 7 August 2021 (UTC)
thread_title:  “Standard of proof” versus “burden of proof” 

message: English 111.125.221.107 (talk) 18:25, 17 November 2022 (UTC)
thread_title:  Business law