3 8 1Burden of Proof
BURDEn of PRoof
A remarkable feature of the line of cases from Plessy through Brown to Bakke,
Grutter, and Gratz is the extent to which interpretations of the equal protec-
tion clause turn on the matter of burden of proof. Under the rational-relation
test that governed Plessy, the state bears a light burden when it is asked to
show that its actions do not conflict with the equal protection clause. In con-
trast, the strict-scrutiny test that governed Brown, that Powell applied in
Bakke, and that the Court applies in Grutter and Gratz places a very heavy
burden on the state to justify any use of a suspect classification or any inter-
ference with fundamental rights.
It may seem peculiar that an important legal decision can turn on such
a technical and procedural matter as burden of proof. But the question of
burden of proof often plays a decisive role in a legal decision, so it is worth
knowing something about it.
The two basic questions concerning burden of proof are (1) who bears this
burden and (2) how heavy is the burden. In our system of criminal justice,
the rules governing burden of proof are fairly straightforward. The state has
the burden of establishing the guilt of the accused. The defendant has no
obligation to establish his or her innocence. That is what is meant by saying
that the defendant is innocent until proven guilty. The burden of proof is also
very heavy on the state in criminal procedures, for it must show beyond a rea-
sonable doubt that the accused is guilty. If the prosecution shows only that it
is more likely than not that the accused has committed a crime, then the jury
should vote for acquittal.
Turning to civil law, there is no simple way to explain burden of proof.
Very roughly, the plaintiff (the one who brings the suit) has an initial bur-
den to establish a prima facie case—that is, a case that is strong enough that
it needs to be rebutted—on behalf of his or her complaint. The burden then
shifts to the respondent (the one against whom the suit is being brought)
to answer these claims. The burden may then shift back and forth depend-
ing on the nature of the procedure. Provided that both sides have met their
legally required burdens of proof, the case is then decided on the basis of
the preponderance of evidence; that is, the judge or jury decides which side has
made the stronger case.
Burden of proof is primarily a legal notion, but it is sometimes used, often
loosely, outside the law. The notion of burden of proof is needed within the
law because law cases are adversarial and the court has to come to a deci-
sion. Outside the law, people have a general burden to have good reasons for
what they say. That is the second part of Grice’s rule of Quality (described
in Chapter 2). More specifically, people have a burden to be able to present
some reasons when they make accusations or statements that run counter to
common opinion.97364_ch18_ptg01_351-382.indd 381 15/11/13 11:38 AM
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