§ 4.02 ALLOCATION OF BURDENS

• Jurisdiction: United States

§ 4.02. ALLOCATION OF BURDENS

Burdens of proof are allocated based on the three "F"s — policy, possession of evidence, and probabilities.⁴ Convenience may be added as a fourth factor, such as having a default rule. As the Supreme Court has recognized: The "ordinary default rule [is] that plaintiffs bear the risk of failing to prove their claims."⁵ "Possession of the evidence" refers to one party's greater access to information. "[T]he ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary."⁶ This concept is illustrated by affirmative defenses such as self-defense and insanity. In both situations, the accused is in a better position to come forward with the evidence because of superior access to proof — i.e., possession of the evidence.

"Frobabilities," as used here, means a rough estimate of how things work in the world. For example, since most people are sane, the accused, as the party asserting insanity, is allocated the burden of production. In addition, policy reasons often underlie the allocation of burdens of proof. For example, in federal cases the prosecution has the burden of persuasion ("beyond a reasonable doubt") in self-defense cases, even though the burden of production is on the defense. In contrast, in insanity cases, a federal defendant must establish insanity by "clear and convincing evidence."⁷ Thus, in federal practice the prosecution is allocated the burden of persuasion for the affirmative defense of self-defense but not the affirmative defense of insanity. In addition, the standards are different: "beyond a reasonable doubt" in self-defense cases and "clear and convincing evidence" in insanity cases. There is a policy decision underlying these rules — one obviously disfavoring the insanity defense.

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^[4] See Cleary, Presuming and Pleading:...