Evidence - Burden of Proof

Burden of Proof

The burden of proof is the burden of providing sufficient evidence to shift a conclusion from an oppositional opinion. Whoever does not carry the burden of proof carries the benefit of assumption. Whoever bears the burden of proof must present sufficient evidence to move the conclusion to their own position. The burden of proof must be fulfilled both by establishing positive evidence and negating oppositional evidence.

There are two primary burden-of-proof considerations:

  1. The question of on whom the burden rests.
  2. The question of the degree of certitude the proof must support. This depends on both the quantity and quality of evidence and the nature of the point under contention. Some common degrees of certitude include the most probable event, reasonable doubt, and beyond the shadow of a doubt.

Conclusions (from evidence) may be subject to criticism from a perceived failure to fulfill the burden of proof.

Scots Law An important part of the Law of evidence is that of corroboration in Scots law. This is a vital element of the law to protect the accused from unjustly being convicted. Each essential fact (facta probandum ) of a case must be corroborated by two independent pieces of evidence and one witness alone cannot corroborate an essential fact, it must be corroborated by a second independent source. Essential facts are those listed in the indictment and used to charge the accused and the sources of evidence come in many forms, such as documentary, DNA, forensic and report evidence or from a scientist or forensic pathologist. Corroboration will normally include direct evident, such as an eye witness and could include circumstantial evidence, which is evidence that has a relationship to the crime and can assist in 'proving' the essential fact also known as indirect evidence. Two pieces of indirect evidence which both relate to the same incident, may mean that direct evidence is not required, this is known as evidential facts and they do not require corroboration. The essential facts will vary with each case and the complainer is likely to lose, if an essential fact which is vital to their case cannot be proven.

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