Burden of Proof

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Related to Burden of persuasion: burden of proof, Clear and convincing evidence
The following article is from The Great Soviet Encyclopedia (1979). It might be outdated or ideologically biased.

Burden of Proof


(Latin, onus probandi), in legal procedure, the rule by which the obligation to prove particular circumstances of a case is distributed among participants in the case. Under socialist law the distribution of burden of proof reflects the competitive nature of the judicial process and activates the court’s routine.

The law of the USSR establishes that each party in a civil trial must prove the circumstances on which he relies in substantiating his claims or defense. For example, the plaintiff must prove the circumstances constituting the grounds of the suit and the facts attesting to the defendant’s violation of his rights; the defendant must prove the grounds of his defense. In each specific case the scope of facts subject to proof by those participating in the case is determined by the norms that regulate the particular legal relationship (for example, in a suit for redress of an injury the burden of proof in showing the absence of guilt falls on the defendant). In suits relating to various types of contracts, the responsibility for proving violation of an obligation rests with the creditor; the debtor must prove the facts that confirm the fulfillment of his obligations. The court has the right to direct persons participating in the trial to submit additional evidence, and it may, on its own initiative, gather evidence to determine the true relationship between the parties. In a criminal trial, the law prohibits the court, procurator, investigator, or the person who conducted the inquiry from transferring the burden of proof to the accused.

The term “burden of proof is used in bourgeois civil procedure. This burden falls entirely on the parties, and the court plays no active part in questions of proof.

The Great Soviet Encyclopedia, 3rd Edition (1970-1979). © 2010 The Gale Group, Inc. All rights reserved.
References in periodicals archive ?
If you find that (defendant) proved (insert appropriate burden of persuasion) that the [office of the sheriffl [Department of Corrections] [Department of Juvenile Justice] misinformed [him] [her] or otherwise prevented [him] [her] from complying with the registration requirements, you should find [him] [her] not guilty.
(191.) While the noncitizen bears the initial burden of production, DHS bears the burden of persuasion. See Huang, 19 I.
bearing the burden of persuasion. In other words, the
In their petition for certiorari, the parties asked the Supreme Court to decide "whether a plaintiff must 'present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case." (73) The Supreme Court, however, did not answer this question, but rather considered "whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives discrimination claim brought under the ADEA." (74) The Court held that it did not.
This understanding of the nature and role of legislative decision-making may be the source of difference between Justice O'Connor and Professor Hamilton regarding the placement of the burden of persuasion. Along with Justice O'Connor, I would retain the strict scrutiny standard for free exercise matters, and place the burden on the government to consider the negative, even if non-purposeful, effects of government regulation on free exercise interests.
The plaintiff then assumes the burden of persuasion to demonstrate by a preponderance of the evidence that the defendant's explanation is mere pretext (98) and to then convince a jury that the employer was instead motivated by age bias.
(152) Tampering with the burden of persuasion to accomplish purposes external to the law of evidence or the substantive law, such as the promotion of a limitation of actions policy, indirectly compromises their ability to accomplish their own internal purposes.
The First Circuit in Hospital Cristo incorrectly applied Greenwich Collieries by failing to definitively place a burden of persuasion on the NLRB General Counsel.
(41) This leaves the plaintiff with the burden of persuasion to show intentional discrimination, without the benefit of a presumption, by showing either that a discriminatory reason more likely motivated the employer or that the articulated reason is not the true reason, but rather a pretext for intentional discrimination.
You may also hear judges speak of other burdens, such as the burden of pleading (which party must raise the issue), the burden of going forward with the evidence (the need to produce sufficient evidence to allow the issue to go to the fact finder), and the burden of persuasion (who loses if the quantum is not met).
The IDEA does not assign the burden of persuasion; thus, the Supreme Court began with the default rule, placing the burden on plaintiffs.