A Logical Analysis of Burdens of Proof

LEGAL EVIDENCE AND PROOF: STATISTICS, STORIES, LOGIC, pp. 223-253, H. Kaptein, H. Prakken, B. Verheij, eds., Aldershot, 2010

Posted: 12 Nov 2010

See all articles by Henry Prakken

Henry Prakken

University of Utrecht

Giovanni Sartor

European University Institute Law Department

Date Written: November 11, 2010

Abstract

The starting point of this article is the claim that logics for defeasible argumentation provide the means to logically characterise the difference between several kinds of proof burdens, but only if they are embedded in a dynamic setting that captures the various stages of a legal proceeding. It is also argued that √ęstandard√≠ argumentation logics for AI must be adapted in order to model shifts in burdens of proof. Thus this analysis illustrates in two ways that logics cannot be simply imposed on the law but that features of legal systems must be taken into account. First there is the claim that the burden of persuasion, which legally is the burden to prove a statement to a specified degree (the standard of proof) on the penalty of losing on the issue, can be verified by applying an argumentation logic to the evidence available at the final stage of a proceeding. Then a precise distinction is made between two burdens that are sometimes confused, namely the burden of production and the tactical burden. In this analysis, the tactical burden of proof is automatically induced by the defeasible nature of the reasoning. The burden of production, by contrast, concerns the legal question whether an issue can be submitted to trial or must be decided as a matter of law against the one who fails to produce any evidence. Finally the issue is raised to what extent this account can be generalised to statistical and story-based approaches.

Keywords: logic, evidence, burdens of proof, burden of production, burden of persuasion

Suggested Citation

Prakken, Henry and Sartor, Giovanni, A Logical Analysis of Burdens of Proof (November 11, 2010). LEGAL EVIDENCE AND PROOF: STATISTICS, STORIES, LOGIC, pp. 223-253, H. Kaptein, H. Prakken, B. Verheij, eds., Aldershot, 2010. Available at SSRN: https://ssrn.com/abstract=1707735

Henry Prakken

University of Utrecht ( email )

Vredenburg 138
NL-3508 TC Utrecht, 3511 BG
Netherlands

Giovanni Sartor (Contact Author)

European University Institute Law Department ( email )

Via Bolognese 156 (Villa Salviati)
50-139 Firenze
ITALY

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