Lessons · Law foundations · who has to prove it
Who has to prove it, and what happens if nobody does
The burden of proof says which side loses when the evidence leaves the decider unsure, and it is not always on the side that brought the case.
Hone is a place to practise a career, one idea a day. This is one of its lessons, written out in full and free to read without an account.
What it is for
A trainee asks why a claim can fail when both sides sound equally believable. That is the burden doing its work: an even balance is not a draw, it is a loss for whoever was carrying the weight, and knowing who that is tells the file what it has to go out and find.
How to think about it
For every issue, not for the case as a whole, ask two things: who carries it, and to what height. Different issues in one case can sit on different sides.
Worked example
Issue by issue, not case by case.The side bringing the claim carries its elements. A defence it does not attack is often carried by the other side.
Who carries it: the side that will lose if the decider cannot decide.That is what carrying it means, stated plainly.
To what height: the standard for that kind of case.Carrying it and clearing it are two different questions, asked in that order.
A criminal charge: the state carries it, on every element, all the way through.It does not shift because the defendant said nothing. Silence is not a substitute for the state's proof.
Your turn
Write the word for what a defendant in a criminal case starts with, before any evidence is heard.
A criminal defendant starts with the presumption of
Solve one, graded on the server
The trap
Saying the burden shifts because the other side now has something to answer. Having something to answer is about the practical need to respond; the burden on an element stays where the rule put it.