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Burdens of proof

What is now more than a decade ago, author Scott Turow produced one of the most renowned and widely read novels of its time, his blockbuster, The Burden of Proof. In the book, brilliant defense Attorney Sandy Stern discovers that his wife of 30 years has committed suicide, leaving behind a web of mystery, money, and guilt. While Stern hunts for answers to his wife’s death, he is caught up in the threatened Federal prosecution of his most powerful and troublesome client–his own brother-in-law. Riveting stuff without a doubt. The question the novel begs, however, is what exactly is a burden of proof and what quarter in the universe does a burden of proof occupy?Well, from the get-go, there is not a single, immutable burden of proof. Rather, there are a whole smorgasbord of burdens of proof, each one of which may be applicable under proper circumstances.Burdens of proof appertain to the law of evidence — that is the means and methods by which any alleged matter of fact, the truth of which is submitted to investigation, is either established or disproved. “Evidence” is constituted of any matter of fact, the effect, tendency or design of which is to produce in the mind a persuasion of the existence or non-existence of some issue in dispute. It is also the means sanctioned by law of ascertaining in a judicial proceeding the truth respecting a question of fact.You got that? Okay, then let me simplify. “Evidence” is both a thing and a process. Its “thingness” is in the evidence itself — say a bloody knife, an executed will, the choked-on peach pit that ushered the deceased to that great big orchard in the sky. But it is a process, too — the means and methods by which the thing must be presented to the arbiter of fact.Generally speaking, all evidence is subject to some burden, a “burden” in this instance signifying a hurdle which must be overcome. Think of a trial as the 400 meter high hurdles of the law and you, the defender-of-justice, are the Edwin Moses of the courtroom, your sprinter’s cleats laced tight. Think now of each hurdle as a separate burden or proof which must be cleared to win the race, exchanging high-fives with your client as you trundle, giddy with the glow of victory, down the courthouse stairs. Think further, if you will, of each hurdle as the burden of proof over which must be carried the racer’s bid of each individual item of evidence.But, wait, there’s more. Not only does each evidentiary piece of the litigation puzzle carry its own burden of proof (proving, for example, the authenticity of some “smoking gun” bit of documentary evidence), but there is an overall “burden” that must be cleared to walk away with the winner laurels wrapped about your noggin. And this overall “burden”, my friends, is to what my esteemed colleague, Mr. Turow, was alluding in his title — the cumulative “burden” necessary to overcome in order to walk away sequestering the victory in your vest pocket.In more traditional terms, a “burden of proof” is a term which describes two different concepts: the “burden of persuasion” and the “burden of going forward with evidence,” the technical distinction of which are both subtle and varied. Suffice it to say, for purposes of this column, that the “burden of persuasion” never shifts and means, essentially, the necessity of establishing a certain fact. The “burden of going forward” may shift from one part to the other and, perhaps, back again, and regards the necessity of making a primae facie showing of some matter or another. In a related vein a “burden of establishing” means the burden of persuading the trier of fact that the existence of the fact is more probable than not.And now, we come to the nexus of this column — that is the different “standards” if you will against which to apply a particular burden. As stated immediately above, a “burden of establishing” means that the trier of fact is persuaded that the existence of a fact is more probable than not. In other words, the thing is more likely to stand for the proposition for which it is presented than not. That burden then — more likely than not — is the standard against which the burden of establishing is measured.Again, stated generally, except as otherwise provided by law, the applicable burden of proof requires proof by a preponderance of the evidence. Precisely what this means has been through our history, and continues to be hotly debated. Suffice it to say, at least in a general way, that the stack on one side of the scales is stacked more heavily with persuasive facts than the other. Any Bozo could plainly see the weight is on one side and that scales are tipped irrefutably in one direction or the other.In criminal proceedings, all of the elements (yep, each any every element that constitutes the alleged crime) must be proved by government “beyond a reasonable doubt.” In other words, no reasonable person, having waded through the evidence, could reasonably come to a different conclusion. Of course, this is the burden to convict and, absent overcoming the burden, the trier of fact is compelled to acquit.We all have hurdles to overcome in life. But in the law, their height — the burdens to overcome — are pre-set by the helpful ghosts of precedent.Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He can be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Mr. Robbins can be reached at 926-4461 or at robbins@colorado.net.Vail, Colorado


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