Wednesday, December 28, 2016

Burden of Proof vs. Burden of Evidence

Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. The burden of proof rests upon a party asserting the affirmative of an issue. Thus, plaintiff who alleges defendant's negligence has the burden of proof. This is often with the plaintiff but it need not necessarily be so. The defendant in a suit for enforcement of written contract who raises the defense of forgery has the burden of proving forgery. The key query is who is the party asserting the affirmative of an issue.

Burden of evidence on the other hand, is the duty of a party to go forward with the evidence and which duty if fulfilled by the party shifts the burden of evidence to the adverse party. Burden of evidence may shift from party to party depending upon the developments in the case. Initially, the party having the burden of proof also has the burden of evidence.

Burden of proof never shifts but burden of evidence may shift from one party to another.

Thus, in a torts case, if the plaintiff has presented evidence on defendant's negligence sufficient to establish his claim, the burden of evidence to disprove the plaintiff's claim that defendant is negligent shifts to the defendant. If the defendant presents sufficient countervailing evidence then the burden of evidence shifts back to the plaintiff again. Take note however that the burden of proof on the issue of negligence is always with the plaintiff.

Digg Google Bookmarks reddit Mixx StumbleUpon Technorati Yahoo! Buzz DesignFloat Delicious BlinkList Furl

0 comments: on "Burden of Proof vs. Burden of Evidence"

Post a Comment