On Reconsideration. Burdens of Proof or Burdens on Truth?

• Author: Kenneth R. Berman
• Pages: 53-55

Published in Litigation, Volume 47, Number 2, Winter 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 53

Two young siblings approach a parent.

“Tracy took my hairbrush,” says Alex.

“I did not. It’s not her hairbrush. It’s

mine. She took it out of my room, so I took

it back.”

The parent must resolve the dispute.

Who has the burden of proof?

Under our justice system, that’s easy

to answer. Alex does. Alex claims own-

ership. Tracy has possession. Alex has

accused Tracy of a tort: conversion. In

our system, the accuser has the burden

of proof, and the opposing party’s pos-

session is presumed to be rightful until

proven otherwise.

But who should have the burden of

proof? That’s not so easy to answer, at least

not on the civil side of the justice system.

Not having heard any evidence, the

parent has no basis to give even the

slightest benefit of the doubt to either

sibling. Two children are arguing over

ownership of a hairbrush. Each makes

the same claim: “I am the true owner. My

sibling is falsely claiming that I am not.”

the evidence, the defendant wins.” But if

you think those rules are driven by truth-

finding or fairness, they’re not. Rather,

they seem to exist for the sake of having

a common framework on which every

stakeholder in the dispute can rely as pro-

viding the terms of engagement.

Let’s look at this more carefully.

Burden of Proof

Why do we have a burden of proof? Why

does it belong to the party on the left side

of the v? Is this a good thing? Is there a

better way to do it?

These questions are easy to answer on

the criminal side. On the civil side, not so

much.

In a criminal case, the burden of proof

is on the government, and it’s a heavy one.

The government might have a strong case

and great evidence to support it, but if the

government fails to foreclose a simple

doubt, that doubt, if reasonable, will al-

low a defendant who committed a crime

to go free.

This serves an important policy:

Depriving a person of liberty is so destruc-

tive to the defendant’s humanity and po-

tentially so harmful to the community’s

conscience that we need ample protec-

tion against mistaken outcomes. We also

need this protection to curb zealots within

the government from using the levers of

a prosecution to terrorize those who are

innocent but disliked. So we guarantee

defendants a lawyer, a trial, the right to

confront and interrogate their accusers,

the right to remain silent, the right not

to be convicted by improperly obtained

evidence, and the right to have their guilt

or innocence determined by a neutral jury.

And on top of that, we give the govern-

ment the burden of proving the case be-

yond a reasonable doubt, something ap-

proaching a moral certainty.

These safeguards no doubt allow some

criminals to walk. But we tolerate some

mistaken acquittals for the sake of avoid

-

ing mistaken convictions. A wrongful

Only one can be telling the truth, but the

truth cannot be discerned from a mere

accusation and denial.

Actually, there isn’t a single accuser.

Each child is an accuser, accusing the

other of having taken something of theirs.

And each is a denier, denying having done

anything wrong.

Of course, only one child has posses-

sion, and a convenient maxim says that

possession is nine-tenths of the law. But

why should that matter? If Tracy had

come to the parent while the brush was

still in Alex’s room, their roles would be

reversed. Tracy would be claiming theft,

Alex would be in possession, and Tracy

would have the burden of proof.

Does Tracy’s entering Alex’s room and

taking the hairbrush justify shifting the

burden of proof to Alex?

It seems that our civil justice system

has developed procedural rules of con-

venience, rules like “the plaintiff has the

burden of proof” and “if the plaintiff fails

to persuade you by a preponderance of

BURDENS OF PROOF

OR BURDENS ON TRUTH?

KENNETH R. BERMAN

The author is a partner at Nutter McClennen & Fish LLP in Boston and the author of Reinventing

Witness Preparation: Unlocking the Secrets to Testimonial Success (ABA 2018).

On Reconsideration