Two young siblings approach a parent.
“Tracy took my hairbrush,” says Alex.
“I did not. It’s not her hairbrush. It’s mine. She took it out of my room, so I took it back.”
The parent must resolve the dispute. Who has the burden of proof?
Under our justice system, that’s easy to answer. Alex does. Alex claims ownership. Tracy has possession. Alex has accused Tracy of a tort: conversion. In our system, the accuser has the burden of proof, and the opposing party’s possession is presumed to be rightful until proven otherwise.
But who should have the burden of proof? That’s not so easy to answer, at least not on the civil side of the justice system.
Not having heard any evidence, the parent has no basis to give even the slightest benefit of the doubt to either sibling. Two children are arguing over ownership of a hairbrush. Each makes the same claim: “I am the true owner. My sibling is falsely claiming that I am not.” Only one can be telling the truth, but the truth cannot be discerned from a mere accusation and denial.
Actually, there isn’t a single accuser. Each child is an accuser, accusing the other of having taken something of theirs. And each is a denier, denying having done anything wrong.
Of course, only one child has possession, and a convenient maxim says that possession is nine-tenths of the law. But why should that matter? If Tracy had come to the parent while the brush was still in Alex’s room, their roles would be reversed. Tracy would be claiming theft, Alex would be in possession, and Tracy would have the burden of proof.
Does Tracy’s entering Alex’s room and taking the hairbrush justify shifting the burden of proof to Alex?
It seems that our civil justice system has developed procedural rules of convenience, rules like “the plaintiff has the burden of proof” and “if the plaintiff fails to persuade you by a preponderance of the evidence, the defendant wins.” But if you think those rules are driven by truth-finding or fairness, they’re not. Rather, they seem to exist for the sake of having a common framework on which every stakeholder in the dispute can rely as providing the terms of engagement.
Let’s look at this more carefully.
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