Burden of Proof

Burden of Proof, in legal procedure, signifies the obligation to establish by evidence certain disputed facts; and, as a general rule, this burden lies on the party asserting the affirmative of the issue to be tried or question in dispute, or on the party who would fail if no evidence were adduced on either side. Accordingly, it almost always rests on the plaintiff or pursuer in an action, or on the party asserting the facts on which the result of the litigation must depend. There may, however, be such a legal presumption in favour of the pursuer, that the burden falls on the defender. Thus, where a deed granted by a client in favour of a law-agent is impeached, the law-agent would have to prove that it was properly obtained, and afterwards confirmed by the client. And matters alleged in defence must of course be proved by the defender. Thus, in an action for infringement of patent, it is presumed, unless the defender proves the opposite, that the patent was for an original and meritorious invention. In fact, all the legal presumptions—e.g. in favour of innocence of charges of crime and fraud, in favour of the course of business having been followed, in favour of the onerosity of bills of exchange (i.e. that they were granted for value)—throw the burden of proof on the party contradicting these presumptions. A party is generally bound to prove what is peculiarly within his knowledge. The general presumption in favour of innocence is often displaced by statute for reasons of public policy, as in prosecutions under the Poaching and Post-office and Inland Revenue acts. This subject is treated by all the writers on Evidence, as Taylor, Roscoe, and Powell in England; Dickson in Scotland; and Greenleaf in America. See also Benthams Rationale of Judicial Evidence.