Reconceptualizing the Burden of Proof

19 Pages Posted: 19 Jun 2012

Date Written: June 19, 2012


The burden of proof is conventionally described as an absolute probability threshold – for example, the preponderance standard is commonly equated to anything greater than 0.5. In this Essay, I argue that this characterization of the burden of proof is wrong. Rather than focus on an absolute threshold, the Essay reconceptualizes the preponderance standard as a probability ratio, and I show how doing so eliminates many of the classical problems associated with probabilistic theories of evidence. Using probability ratios eliminates the so-called Conjunction Paradox, and developing the ratio tests under a Bayesian perspective further explains the Blue Bus problem and other puzzles surrounding statistical evidence. By harmonizing probabilistic theories of proof with recent critiques advocating for abductive models (inference to the best explanation), the Essay hopes the bridge a gap in current evidence scholarship.

Keywords: burden of proof, preponderance, statistical evidence, hypothesis testing, probability, Bayesian, conjunction paradox, blue bus

Suggested Citation

Cheng, Edward K., Reconceptualizing the Burden of Proof (June 19, 2012). Yale Law Journal, Forthcoming. Available at SSRN:

Edward K. Cheng (Contact Author)

Vanderbilt Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-875-7630 (Phone)

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