Today's DJ has Justice Hoffstadt's
Go ahead then... prove it! about burdens of proof, how they are "not purely procedural" and "not as well settled as one might believe":
 |
But what about intermediate
burdens of proof? |
Burdens of proof are, at bottom, jurisprudential tie-breakers. They tell a trier of fact harboring some uncertainty how to decide the case. Burdens of proof necessarily have two components: (1) who bears the burden, and (2) what the burden is (a preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt). If we view a burden of proof as telling us, "The tie goes to 'X'", then "X" is the party not bearing the burden of proof, and a "tie" exists when the trier of fact is unsure if the applicable burden has been met.