The Burdens of Proof: Discriminatory Power, Weight of Evidence, and Tenacity of Belief

Posted: 10 Dec 2016  

Dale A. Nance

Case Western Reserve University School of Law

Date Written: December 8, 2016

Abstract

Adjudicative tribunals in both criminal and noncriminal cases rely on the concept of the "burden of proof" to resolve uncertainty about facts. Perhaps surprisingly, this concept remains clouded and deeply controver­sial. Written by an internationally renowned scholar, this book explores contemporary thinking on the evidential requirements that are critical for all practical decision making, including adjudication. Although the idea that evidence must favor one side over the other to a specified degree, such as "beyond reasonable doubt;" is familiar, less well understood is an idea associated with the work of John Maynard Keynes, namely, that there are requirements on the total amount of evidence considered to decide a case. The author expertly explores this distinct Keynesian concept and its impli­cations. Hypothetical examples and litigated cases are included to assist understanding of the ideas developed. Implications include an expanded conception of the burden of producing evidence and how it should be administered.

Keywords: Burden of Proof, Evidence, Facts, Decision Making, Weight of Evidence, Probability, Weight of Evidence, Probability

JEL Classification: K41

Suggested Citation

Nance, Dale A., The Burdens of Proof: Discriminatory Power, Weight of Evidence, and Tenacity of Belief (December 8, 2016). Case Legal Studies Research Paper No. 2016-37. Available at SSRN: https://ssrn.com/abstract=2882744

Dale A. Nance (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-3294 (Phone)
216-368-2086 (Fax)

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