Evidence and Burden of Proof in Foreign Sovereign Immunity Litigation: A Guide for International Lawyers and Government Counsel (2)


Published in 2014 with Createspace / Amazon by Peter Fritz Walter.


Publication Table of Contents


Contents

Introduction
Jurisdiction and Competence
Statute and Law
Fact in Issue
Burden of Proof
The Evidential Burden
The Persuasive Burden
Summary


Introduction

This preliminary chapter was inserted for continental lawyers to hopefully understand my later explanations in matters of evidence and the burden of proof in foreign sovereign immunity litigation.

I shall provide an outline of the common law principles of evidence. After all, I myself received my primary law training within the continental legal system and was thus little familiar with the particularities of Anglo-American civil procedure before I faced the challenge of the present study, and upgraded my knowledge accordingly.

This introduction is useful also because the national immunity statutes examined in this study are all originating from the Anglo-American legal system. We thus have to find out which evidence rules are valid under common law, as all these jurisdictions belong to that same root of legal thought.

By the way, I do not use the term common law in this study as an antidote to statutory law, but, as suggested by René David in his study Les Grands Systèmes de Droit Contemporains (1974), §18, as a term that contrasts with the continental legal system, which is also called civil law.

Canada is legally an interesting intersection point of both systems, a situation that is quite unique. As to the rules of evidence, however, Canada’s legislator, as stated in the Uniform Rules of Evidence (U.L.C.C. Report 1982) decided to follow quite closely the American example, ‘without however slavishly conforming to it.’

— See U.L.C.C. Report 1982, 7

The term evidence has been defined in the quite authoritative textbooks by Tayer, A Preliminary Treatise on Evidence (1898) and by Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law (1981) as:

— All legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact, the truth of which is submitted to judicial investigation. (Tayer)

— Evidence, then, is any matter of fact that is furnished to a legal tribunal otherwise than by reasoning or a reference to what is noticed without proof as the basis of inference in ascertaining some other matter of fact. (Wigmore)

The law of evidence does not vary much in the six jurisdictions that issued immunity statutes, the United States, the United Kingdom, Singapore, Pakistan, South Africa and Canada. In fact, in this body of law reigns an astounding level of consistency which has not only historical reasons, but is also the fruit of an admirable scientific effort of legal unification.

— Wigmore’s extensive treatise is referenced also in British literature on evidence, not just in American textbooks. See, for example, Cross on Evidence (1979), 88. Another example for this unifying effort is Canada’s law reform on evidence and their elaboration of a new code of evidence, which is inspired by scholarly input from both English and American literature and their respective case law.

To give an example, the Indian Evidence Act (Act I of 1872) that is still in force in India and which was equally adopted by Burma and Pakistan, as well as Ceylon and Bangladesh is entirely based on the British law of evidence. Sarkar’s Law of Evidence (1981) explains:

As the Act is drawn chiefly from the English law, a study of the text books on the subject affords great help toward a thorough grasp of the principles and rules underlying the sections, and is to some extent indispensable. For, the sections being only statements of rules in the form of express propositions, they can be best understood by first inquiring into the reasons of those rules. And this can be only achieved by a previous study of English and American textbooks on the subject. (Id., 16).

This is also valid for British and American case law. Woodroffe & Amer Ali’s Law of Evidence (1979) states in the Preface to the 12th edition:

It is acknowledged generally with some exceptions that the Act consolidates the English law of Evidence. In the case of doubt or ambiguity over the interpretations at any of the sections of the Act, it is profitable to look to the relevant English common law for ascertaining the true meaning.

Sri Lanka even has inserted a new section 100 in their civil procedure code that says that all questions of evidence shall be dealt with in accordance with the English law of evidence. For Nigeria, Aguda writes in Law and Practice Relating to Evidence in Nigeria (1980) that until 1945, English law of evidence was applied by all courts in Nigeria as there was no legal regulation yet of that matter.


Jurisdiction and Competence

Cappelletti & Perillo state in Civil Procedure in Italy (1965), that ‘the term jurisdiction is much used and misused.’ For avoiding such a misuse of the term jurisdiction in the present study, I have to clarify what jurisdiction means, and what competence is about.

It is true that we can observe in Anglo-American civil procedure a certain ambiguity with regard to the term jurisdiction; this term is often used for actually denoting the competence of a court for ruling a certain case. Hans Smit wrote in his article The Terms Jurisdiction and Competence in Comparative Law (1961):

Nevertheless, the custom to speak of jurisdiction of courts is most inveterate. This phenomenon might not be particularly objectionable if the term jurisdiction in this context were used only to denote the judicial jurisdiction of the state which gave the court the power go hear the controversy.

However, the difficulties inherent in undiscriminating use of the term jurisdiction are further compounded by the fact that it is also used to describe the power of a court to adjudicate a particular controversy. Used in that sense, the term jurisdiction is a synonym for what is more appropriately called competence.

An example for the use of the term jurisdiction when actually denoting competence is to be found in the United States Foreign Sovereign Immunities Act of 1976. In §1330 of this statute, the conditions are enumerated under which a court possesses competence ratione materiae et ratione personae (subject matter jurisdiction and personal jurisdiction) over a foreign state.

The statute, instead of using the terms ‘subject matter competence’ and ‘territorial competence’, as Cappelletti & Perillo suggest it, replaces the general term competence by the general term jurisdiction.

This terminological confusion, while it seems disturbing on first sight, does have a positive and rational side to it, especially when it is seen together with the topic we are talking about here, foreign sovereign immunity.

To begin with, international law talks about immunity from jurisdiction and not about ‘immunity from competence.’ Immunity from jurisdiction is an exception to the generally unlimited jurisdiction of a forum state over the whole of its territory.

Second, Smit’s argument, when applied to the subject of foreign sovereign immunity, loses a lot of its persuasive weight because the strict distinction between the judicial jurisdiction of a forum state, on one hand, and the competence of a court to adjudicate a particular controversy are in reality the two sides of one and the same medal and decide about one and the same question, namely if immunity is to be granted, or not.

Hence, the competence of the court depends on the denial of immunity; in other words, the affirmation of the judicial jurisdiction of the forum state is a conditio sine qua non for the admission of competence. In this manner, the two problems that are considered generally distinct among law practitioners are in reality intertwined and entangled because of the decisive dichotomy immunity vel non.

In French civil procedure, a distinction is made between the rules of general competence (compétence générale) and specific competence (compétence spéciale); the latter is again divided in the fields of territorial competence (compétence territoriale) of the court and competence ratione materiae. The latter is often called compétence d’attribution.

German, Italian and other national civil procedure laws of continental Europe know similar rules and terms.

But obviously, it would be misleading to use in this study terms familiar to the continental legal system, as we are talking here exclusively about statutory legislation from the common law system.

Apart from the confusion this would create in the field of sovereign immunity, it would be a wrong methodological approach even in a general comparative law study.

— René David, Les Grands Systèmes de Droit Contemporains (1974), 13–14 and by the same author, English Law and French Law (1980), 56 ff., ‘Procedure and Evidence.’

This is why I am going to use in this study the terms subject matter jurisdiction and personal jurisdiction, as the American legislator has explained them in the House Report to the FSIA 1976, and as they are used in habitual legal practice in the common law system. And as any British or American lawyer, I of course mean competence when I say jurisdiction.


Statute and Law

While it has been said by the French lawyer Ernest Lehr in his book Éléments de Droit Civil Anglais (1906) that loi se dit act, the terms statute or act, on one hand, and law, on the other, are quite distinct.

A law, which is the principle legal regulation in the continental system of law, is usually a vast and definite codification. By contrast, a statute or act is a rather secondary, but highly detailed enactment embedded in the so-called common law; as such, a statute is a rather pointed codification that legally regulates a particular situation. Thus, the statute is to be considered primed in relation to common law; in other words, in so far as the statute applies, it overrules any opposing common law. But outside its scope of regulation, common law will still grasp.

— René David, Les Grands Systèmes de Droit Contemporains (1974), §357, 403–403.

While over the last century or so this situation changed as the amount of statutory regulations rose up, this has changed nothing at the principle that common law or case law is the primary source of reference for adjudication with the Anglo-American legal system.

Smith and Bailey observe that a statute is basically an occasional regulation of a legal situation compared to a law that represents something like a definite codification of the legal matter or problem. As a result, the interpretation of laws follows different rules than the interpretation of statutes.

— Smith & Bailey, The Modern English Legal System (1984), 189, René David, English Law and French Law (1980), 20, Francis Bennion, Statutory Interpretation (1984), 162 ff.


Fact in Issue

Fact in Anglo-American civil procedure, according to Wigmore, means ‘whatever is the subject of perception and consciousness.’

— John Henry Wigmore, Evidence in Trials at Common Law (1981), Vol. I, §§1, 2.

The present study is only concerned with the proof of facts, while generally in litigation rights may have to be proven as well, especially in the case when those rights have been acquired under a legal system different from the one of the forum state.

— The (direct) proof of a legal right must be distinguished from the (indirect) proof of a fact that a legal right is based upon. In the first case, it’s for the court a legal question to decide, while in the second case, it’s a question about facts. In Anglo-American law, foreign law is considered to be a fact and thus the usual rules of evidence are applicable. See Hersch Lauterpacht, International Law (1979), §58, 158.

Facts subject to proof are those that are ‘facts in issue’ and ‘facts relevant to the issue,’ or else ‘facts probative to an issue.’

— See Halsbury’s Laws of England, Vol. 17 ‘Evidence’, §32: relevant facts are called ‘facts probative to an issue.’

The main facts in issue are those that the plaintiff must prove in a civil action if he is to win, and those that the defendant must prove in order to establish a defense. It is either substantive law or adjective law, that is, procedural law, which determines those facts, or in the words of Phipson and Elliot: ‘It is not the law of evidence’s business to say what those facts are in any particular case. They are determined by the substantive law or by the proceedings.’

— Phipson and Elliott, Manual of the Law of Evidence (1980), 15

In the particular case of this study, the question which law is applicable is a little more tricky, for not only national law is to be considered, but also international law. As a result, the facts in issue are those derived from both national law and international law. To give an example, §1605(a)(2) FSIA enumerates exceptions from a general rule of immunity, §1604, which represent each a potential fact in issue in any sovereign immunity litigation. I italicized all the potential facts in issue; the plaintiff may invoke either of them in his pleadings:

  • action is based upon a commercial activity carried on in the United States;
  • action is based upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere;
  • action is based upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.

Or let us look at §1603(d) which defines the term ‘commercial activity’ as either a regular course of commercial conduct or a particular commercial transaction or act.

The State Immunity Act 1978 of the United Kingdom is still more precise in this respect. It states in its §3(3):

In this section ‘commercial transaction’ means — (a) any contract for the supply of goods or services; (b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and (c) any other transaction or activity (whether of a commercial, industrial, financial, professional or other similar character) into which a State enters or in which it engages otherwise than in the exercise of sovereign authority;

Thus, under the FSIA 1976, a particular commercial transaction may be a fact in issue. By the same token, under the STIA 1978, a contract for the supply of goods and services is a fact that when it is proven will lead to a denial of foreign sovereign immunity and thus will be constituent for the affirmation of jurisdiction over the foreign state.

— See the similar provisions in §5(2)(a) of Singapore STIA 1979, §5(3)(a) of Pakistan STIO 1981, and §4(3)(a) of South Africa FSIA 1981. Under the United States FSIA 1976, such contracts fall under §1603(d) and Canada STIA 1982 defines them in §5.


Burden of Proof

The term burden of proof in Anglo-American law is distinct from the terms ‘charge de la preuve’ or ‘fardeau de la preuve’ in French law, ‘Beweislast’ in Germanic legal systems, ‘carga de la prueba’ in Hispanic legal systems, ‘ónus da prova’ in Portuguese and Brazilian law, or ‘onere della prova’ in Italian law.

— See in general for French civil procedure, Ghestin & Goubeaux, Traité de Droit Civil (1982), Vol. I, 485 ff., Dalloz, Encyclopédie Juridique, ‘Preuve’, Chap. 2, Sect. 2, Mazeaud, Leçons de Droit Civil (1983), Tome I, Vol. 1, 429 ff. (‘La charge de la preuve’).

— See in general for German civil procedure, Hans Prütting, Gegenwartsprobleme der Beweislast (1965), 5–43, Hans-Joachim Musielak, Die Grundfragen der Beweislast im Zivilprozess (1984), 1–57, Musielak/Stadler, Grundfragen des Beweisrechts (1984), 102 ff., Rosenberg-Schwab, Zivilprozessrecht (1981), §118, 680–692.

— See in general for Spanish Civil Procedure, art. 1214 of the Código Civil Español: ‘Incumbe la prueba de las obligaciones al que reclama su cumplimiento, y la de su extinción al que la opone’. This provision corresponds to art, 1315 of the French Code Napoléon, as cited above in the text. See the comment on the adoption of this article in the Spanish Civil Code from the French Civil Code Brocá/Majada, Práctica Procesal Civil (1979), Tome I, 936 ff. The countries of Middle and South America are equally part of the continental law system. See René David, Les Grands Systèmes de Droit Contemporains (1974), 72 and Phanor J. Eder, A Comparative Survey of Anglo-American and Latin-American Law, New York (1950).

— For Ecuador: See José Alfonso Troya Cevallos, Elementaros de Derecho Procesal Civil (1978), Tomo I, pp. 245–246.

— For Mexico: Art. 281 of the Código de Procedimientos Civiles corresponds to art. 1214 of the Código Civil of Spain, see Carlos Arellano García, Derecho Procesal Civil (1981), 153–155

— For Peru: See Pedro Sagastegui, Urteaga, Derecho Procesal Civil (1982), Tomo II, 84–91.

— For Chile: Emilio Rioseco Enriquez, La Prueba ante la Jurisprudencia (1982), 59–80.

— For Argentina: Art. 377 of the Código Civil y Comercial de la Nación is drafted after the model of art. 1214 of the Código Civil of Spain, but stipulates more details.

— For Uruguay: Eduardo J. Couture, Fundamentos del Derecho Procesal Civil (1981), 240–248.

— For Colombia: Hernando Davis Echandia, Teoría General de la Prueba Judicial (1981), Tomo I, 393 ff. It is interesting to note that the German treatise of Rosenberg is quoted here, which has been translated to Spanish, see 450, note 132, which is just another puzzle stone that witnesses for the supranational coherence of evidence laws, also in the continental legal system. See also Gustavo Humberto Rodriguez, Curso de Derecho Probatorio (1983), 70 ff.

— For Bolivia: Art. 375 of the Código de Procedimiento Civil which also is a recapitulation of art. 1214 of the Código Civil of Spain.

— See for Portugal, Varela/Bezerra/Sampio e Nova, Manual de Processo Civil (1984), 430–451, with many references from French, Italian and German evidence law textbooks.

— Augenti, L’onere della prova (1932), Micheli, L’onere della prova (1942), Aurelio Scardaccione, Le Prove (1971), Parte Prima, 3–84, Crisanto Mandrioli, Corso di Diritto Processuale Civile (1978), Tome II, 113–120, Andrea Lugo, Manuale di Diritto Processuale Civile (1983), 131–132, Cappelletti & Perillo, Civil Procedure in Italy (1965), 185 ff. with many references from Italian law textbooks and a short comparison of Italian evidence law with Anglo-American evidence law (at 82 and 185).

To begin with, in France, article 1315 of the Code Civil states for the proof of a debt or the payment of a debt:

§1315 Code Civil

Celui qui réclame l’exécution d’une obligation doit la prouver. Réciproquement, celui qui se prétend libéré, doit justifier le paiement ou le fait qui a produit l’extinction de son obligation.

Regarding Canada while the French version of the bilingual text of the Uniform Evidence Act, Livre II, Règles Générales de Preuve, Titre I speaks of fardeau de la preuve, this notion is not identical with the term fardeau de la preuve or charge de la preuve in continental law. Canadian law, as already mentioned, follows the Anglo-American evidence law system, while in Québec the French translation of the English term burden of proof does not reflect the legal content of this notion. It is just what it is, a translation.

— See Dagmar Coester-Waltjen, Internationales Beweisrecht (1983), 254–303.

Austrian and Swiss civil procedure law, and evidence law, is strongly influenced by German civil procedure law and rules of evidence.

— See, for example for Austria Hans W. Fasching, Lehrbuch des österreichischen Zivilprozessrechts (1984), 417–426, and for Switzerland Max Guldener, Schweizerisches Zivilprozessrecht (1979), 325–327. It has to be noted that procedural law is in Switzerland regionally bound, and every Canton has its own civil procedure code.

Federal evidence law is to be applied when the juridical matter in question is one of federal law; if however the facts at the basis of the case are those of a relationship ruled by Cantonal law, the civil procedure rules of that Canton are to be applied for the case. As to federal law, see for example Art 8 ZGB.

— See Guldener, Schweizerisches Zivilprozessrecht (1979), 325. See also Walder-Bohner, Zivilprozessrecht (1983), 327–334, Walther Habscheid, Droit Judiciaire Privé Suisse (1981), 423–426, and Max Kummer, Grundriss des Zivilprozessrechts (1978), 136–140.

Despite these apparent differences, it is nonetheless possible to derive common parallels from the different notions of the onus probandi. For example, like with the Anglo-American notion of the burden of proof, there is a dual nature to be noted also with the continental notions of the burden of proof.

To be true, there are generally two distinct notions, a subjective or affirmative burden and an objective burden that is also called burden strictu senso. The subjective burden or affirmative burden of proof is called ‘Beweisführungslast’ or ‘subjektive Beweislast’ in German civil procedure, ‘charge de la production des preuves’ in French civil procedure, ‘carga de la afirmación de la prueba’ in Spanish civil procedure and ‘onere della prova’ in Italian civil procedure.

— Germany: Hans Prütting, Gegenwartsprobleme der Beweislast (1965), §4, 23 ff., Dagmar Coester-Waltjen, Internationales Beweisrecht (1983), 274, 296

— France: Raynaud/Vanel, Répertoire de Procédure Civile (1984), ‘Preuve’, Section 2 ‘Charge de la Preuve’, §1 ‘Ordre de la Preuve.’

— Spain: Prieto-Castro, Tratado de Derecho Procesal Civil (1982), 624 ff.

— Italy: Aurelio Scardaccione, Le Prove (1971), Parte Prima, 4 ff., Cappelletti & Perillo, Civil Procedure in Italy (1965), 185 ff.

The objective burden of proof is called ‘Beweislast’ or ‘objektive Beweislast’ in German civil procedure, ‘risque de la preuve’ in French civil procedure, ‘carga de la prueba’ in Spanish civil procedure and ‘onere della prova’ in Italian civil procedure.

— Germany: Hans Prütting, Gegenwartsprobleme der Beweislast (1965), §3, 20 ff., Dagmar Coester-Waltjen, Internationales Beweisrecht (1983), 281 ff.

— France: Raynaud/Vanel, Répertoire de Procédure Civile (1984), ‘Charge de la Preuve’, §2 ‘Risque de la Preuve’

— Spain: Prieto-Castro, Tratado de Derecho Procesal Civil (1982), 626 ff.

— Italy: Aurelio Scardaccione, Le Prove (1971), Parte Prima, 4 ff., Cappelletti & Perillo, Civil Procedure in Italy (1965), 185 ff.

Italian civil procedure law does not seem to make this difference as for both notions the same expression, onere della prova, is used. However, Cappelletti and Perillo, who have done an in-depth comparison of the Italian notion of onere della prova and the Anglo-American term burden of proof, conclude:

The rules governing the burden of proving a fact are intimately related to the rules governing the burden of alleging a fact. As a general rule, the party who has the burden of pleading also has the burden of proof. (Id., 185).

The affirmative burden is applied to the pleadings and establishes a certain order in the probatory procedure; according to that order, the burden shifts from one party to the other. However, the objective burden of proof is not related to the production of evidence, but decides the litigation in case of a non liquet, that is, an irresolvable doubt regarding any fact in question: the party who carries the objective burden, then, loses the case.

This means, practically speaking, that the objective or legal burden enables the judge to render a verdict in a case where the truth cannot be found. It’s the applicable substantive law that attributes the objective burden, which is why Lord Denning’s expression legal burden is particularly fit for denoting this burden. It’s also correct to denote this burden as the ultimate burden, as it does not shift.

These similarities admitted, it would be simplistic, as noted by Cappelletti & Perillo, to use any of the terms for the onus probandi from any of the continental legal systems synonymously with the Anglo-American term burden of proof.

In Anglo-American law, the term burden of proof is used to describe two different burdens. (…) In the Italian non-jury system, this distinction does not exist. Italian law is concerned only with the risk of non-persuasion. Even in the Italian system, however, the question whether the burden of proof has been met is considered in two stages. Unless the panel decides to hear the evidence itself or to remand the case to the examining judge for the further taking of evidence, the examining judge decides when to close the proof-taking stage, thus preventing the introduction of further evidence. (Id., note 82).

The difference has to be seen as a result of the different ways to litigate. Anglo-American civil procedure is an adversary system where the parties from the start maintain antagonist positions, and it’s a system that works with a jury, and not just a single judge or three judges. James & Hazard note in their book Civil Procedure (1977), §1.2, p. 4. [45]:

A leading characteristic of the Anglo-American procedural system is its adversary nature. In civil disputes it is generally up to the parties, not the court, to initiate and prosecute litigation, to investigate the pertinent facts, and to present proof and legal argument to the tribunal. The court’s function, in general, is limited to adjudicating the issues submitted to it by the parties on the proof presented by them, and to applying appropriate procedural sanctions upon motion of a party.

In any case, for the present study this controversy is not of importance as only Anglo-American statutes are to be examined, for which the Anglo-American law of evidence is to be applied.

In fact, because of the particular nature of the adversary litigation system and its bestowal of judicial cognition upon both judge and jury, evidence law in general, and the rules of the burden of proof, in particular, have a much higher importance under common law than in continental law. Fortunately, the subject has been elucidated by high rank legal scholars and a sheer enormous amount of case law. Phipson on Evidence references about 8000 precedents, Wigmore even 16000!

It is to note that statutory regulations on civil procedure seldom contain rules of evidence or a precise allocation of the burden of proof, as for example the UK’s Civil Evidence Acts of 1968 and 1972, or South Africa’s Civil Proceedings Evidence Act No. 25 of 1965.

— The Civil Evidence Act of 1968 is reproduced in Stone’s Justices’ Manual (1981), Vol. 1, 506 ff., 521 ff., the South African Civil Proceedings Evidence Act is reproduced in Statutes of the Republic of South Africa, Vol. 11, 51 ff.

This is systemically sound because the burden of proof is determined by the applicable substantive law, not civil procedure regulations.

There are however presumptions to be found in American civil procedure laws, in the rules No. 301 of the Federal Rules of Evidence (28 U.S.C.A.) and in the Uniform Rules of Evidence, 13 U.L.A. Civ. Proc. 227. A detailed regulation of evidence rules was worked out by the American Law Institute and was inserted in the Model Code of Evidence (1942). Similar rules are to be found in the California Evidence Code.

Regarding Canada, the Uniform Evidence Act contains not only very detailed provisions regarding the burden of proof, but it also bears the advantage that it’s drafted in a truly bilingual manner (English/French).

— The Uniform Evidence Act was worked out by the Federal/Provincial Task Force on Uniform Rules of Evidence and reproduced in the U.L.C.C. Report (1982). The Bilingual text appears in Appendix 4, pp. 541 ff.

The general rule is that the judge adjudicates about legal questions, while the jury decides about the facts, but there are several exceptions to this rule. In addition, it has to be seen that more and more litigations are held without a jury; the judge is said to take over the two functions in one person.

However, in principle, the particularities and rules of the burden of proof have not changed for that reason.

Phipson on Evidence (1982), 15, n. 1–24. For the United Kingdom, Walker & Walker, The English Legal System (1985), 244–245

Phipson & Elliott write:

Now the trial is usually before the judge alone, the two separate functions remain. The judge performs them both, but he must take care to keep them separate. (Manual of the Law of Evidence (1980), 37.

It is important to remember that Anglo-American evidence law has been coined by the particularity of the jury trial, and that is why the strict separation of the functions of judge and jury even applies when the judge decides alone.

In the United States, the Federal Rules of Evidence detail the evidence procedure in federal jurisdiction. These rules, interestingly, also do not make a distinction between trials with or without jury, as they implicitly hold that for the latter category of trials, the judge performs both functions.

Cross on Evidence (1979), 92 and Lilly, Introduction to the Law of Evidence (1978), 47, note 13.

However, the question does not need to be deepened in this study as foreign sovereign immunity litigation is trialed without jury. The main difficulty in understanding the Anglo-American concept of the burden of proof results from the fact that the term has more than one meaning.

— Phipson and Elliot, Manual of the Law of Evidence (1980), 51. See also Schwering, System der Beweislast im englisch-amerikanischen Zivilprozess (1969), 60 ff.

It was only at the end of the 19th century that, with the classical monograph of J. B. Tayer, A Preliminary Treatise on Evidence (1898), the legal profession began to build awareness about the need to clarify the matter. James & Hazard note:

The term burden of proof is used in our law to refer to two separate and quite different concepts. The distinction was not clearly perceived until it was pointed out by James Bradley Thayer in 1898. The decisions before that time and many later ones are hopelessly confused in reasoning about the problem. The two different concepts may be referred to as (1) the risk of non-persuasion, or the burden of persuasion or simply persuasion burden; (2) the duty of producing evidence, or simply the production burden or the burden of evidence.

— James & Hazard, Civil Procedure (1977), §7.5, pp. 240–241

The two burdens have to be distinguished; they are called principle burdens. So far there is unanimity in the literature; on the details, however, the literature greatly vacillates. Cross distinguishes further between provisional and ultimate burdens and between shifting burdens and rebuttable presumptions.

Cross on Evidence (1979), 85–93, Cross on Evidence, Australian Edition (1980), §§4.2 ff., Hoffmann/Zeffert, South African Law of Evidence (1983), 385–386.

Sometimes even a third burden is added, that is called the ‘burden of pleadings,’ while in reality this burden is a consequence of the legal burden. And Phipson to add on a forth burden, the burden of establishing the admissibility of the evidence.

— Graham, Federal Rules of Evidence in a Nutshell (1981), §301.3, p. 42 and Phipson on Evidence (1982), p. 44, n. 4–03.

In fact, the admissibility of proof by the judge is of high importance in the adversary trial as lay persons are going to decide about the evidence; as a result, it is crucial which evidence is admitted and which is refused by the judge, whose role is to supervise the trial game with his ‘legal eye,’ as juries can be rather unpredictable in their verdicts. But apart from this rather fancy expansion of the system, most authors and the overwhelming number of precedents admit a dualistic system with two principle burdens.

— See, for example, Nash, Civil Procedure (1976), p. 328 and Rothstein, State and Federal Rules (1981), Ch. II, 99.

These principle burdens are:

(1) The persuasive burden, legal burden or risk of non-persuasion of the jury; (2) The evidential burden, burden of adducing evidence or duty of producing evidence to the judge.

— Anglo-American law professionals have not lacked fantasy to coin synonyms to these terms; however their fantasy did not necessarily lead to more clarity; and what is needed in matters of terminology is precision. The term ‘risk of non-persuasion of the jury’ is employed by Wigmore, Vol. 9, §2485, Cross on Evidence, 27, Lilly, 41, Phipson & Elliott, 51, Glasbeek, 633 and Curzon, §5, 48. The term ‘legal burden’ is to be found in Halsbury’s Laws of England, §13, Cross on Evidence, 86, Glasbeek, 633. The term ‘burden of persuasion’ is used by Lilly, p. 40, Graham, Rules of Evidence, §310.5, 45 and Graham, Evidence, 755. In addition, you can find the terms ‘persuasion burden’ with Cross on Evidence, 93 and Rothstein, Ch. 2, 107 as well as ‘fixed burden of proof’ with Cross on Evidence, 87. That is not yet all there is. I also found the term ‘general burden of proof’ with Walker and Walker, 613 and Aguda, n. 21–12, the term ‘burden of establishing the case’ with Sarkar on Evidence, §102, 911, ‘onus of proof’ with Cross on Evidence, 97, ‘onus’ with Hoffmann & Zeffert, 386, ‘burden of proof on the pleadings’ with Sarkar’s Law of Evidence, ‘persuasive burden’ with Phipson on Evidence, n. 4–04, ‘ultimate burden’ with Cross on Evidence, 93 and Lilly, 44 or simply ‘burden of proof’ with Cross on Evidence, 86 or ‘burden of proof simpliciter’ with Woodroffe & Amer Ali’s Law of Evidence, Sect. 104, n. 2, 2107

— The term ‘duty of producing evidence to the judge’ is to be found with Wigmore, Vol. 9, §2486; the term ‘evidential burden’ is employed by Halsbury’s Laws of England, §13; the term ‘burden of adducing evidence’ is used by Lilly, 44 and by Phipson on Evidence, n. 4–04. In addition, the expression ‘onus of proof’ is used for this burden by Sarkar’s Law of Evidence, §102, 912 and §103, 913 and by Woodroffe & Amer Ali’s Law of Evidence, Sect. 104, n. 2, 2107. This is not yet all there is in terminological fantasy. ‘Burden of producing evidence’ as well as ‘burden of production’ are used by Lilly, 44 and Phipson on Evidence, n. 4–04, the expression ‘burden of going forward with evidence’ can be found in the Federal Rules of Evidence, Rule 301, the term ‘production-of-evidence burden’ is to be found with Rothstein, Ch. 2, 99 as well as ‘production burden’ with the same author on 100, ‘evidentiary burden’ can be found with Hoffmann & Zeffert, p. 386, ‘risk of not-adducing evidence’ is coined by Glasbeek, 638, and ‘burden of introducing evidence’ is a term Aguda comes up with on n. 21–16. For avoiding the danger of confusion between the two burdens, Cross on Evidence, 27–28, suggests to not use the expression ‘evidential burden of proof’

The presentation of evidence is a highly regulated and orderly ritual. It starts with the party who bears the evidential burden to address their proof to the judge. The judge decides if a prima facie case has been made, and then instructs the jury to pronounce the final decision regarding the evidence offered by both parties. This is often expressed in the terms that the parties have to ‘pass the judge and convince the jury.’ It’s in that moment that the persuasion burden comes to play its decisive role.

— See, for example, Phipson and Elliott (1980), 52. The formulation used in two U.S. district court decisions shows the nature of both burdens very well: ‘Burden of proof has two elements, the burden of producing evidence and the burden of persuading the fact finder’, Abilene Sheet Metal Inc. v. N.L.R.B., 619 F.2d 332 (3d Cir. 1980) and Hochgurtel v. San Felippo, 253 N.W.2d 526, 78 Wis.2d 70 (Wis. 1977).


The Evidential Burden

Introduction

There is a special relationship between the expressions evidential burden, prima facie evidence and standard of proof. The party that bears the persuasive burden has the right to begin with presenting evidence to the judge, and as a general rule, the evidential burden follows the persuasive or legal burden.

— Cross on Evidence (1979), 29, Hoffmann & Zeffert (1983), 390–391, Phipson & Elliott (1980), 63. If, exceptionally, the legal burden is on the defendant, it’s the defendant who has the right to begin. The right to begin also has been called ‘onus probandi,’ see The English and Empire Digest (1974), §131, Sarkar’s Law of Evidence (1981), §102, 911, Phipson on Evidence (1982), n. 4–07, 47–48.

As in principle the legal burden is on the plaintiff, it’s the plaintiff who usually begins to produce evidence.

— Halsbury’s Laws of England, §17.

For every single issue, evidence is thus produced. This is by the way not a particularity of Anglo-American civil procedure, but a general principle.

Every proof must relate to a specific fact in issue, otherwise it would be off-track and irrelevant. As a result, a burden of proof ‘in general’ is inconceivable. For every fact in issue, there is a burden of proof that one of the parties is charged with. Cross on Evidence (1979), 29, expresses it this way: ‘In the context of the law of evidence, the expression ‘burden of proof’ is meaningless unless it is used with reference to a particular issue.’ The judge considers the evidence in the light of the applicable standard of proof and decides if a prima facie case was established.

Standard of proof is a measure for the adequateness of the proof presented. All evidence must meet a certain standard to be adequate, to be sufficient; as a result, all evidence has to be evaluated by the judge for meeting the standard of proof applicable in the particular litigation.

The term prima facie case or prima facie evidence in Anglo-American civil procedure has nothing in common with the notion of Prima-Facie Beweis in German civil procedure law, while literally translated it seems to be equivalent.

— Frédéric W. Eisner, Beweislastfragen und Beweiswürdigung im deutschen und amerikanischen Zivilprozess, ZZP, Bd. 89, 78–90, pp. 86 ff.

Notion and Function

Cross writes that the concept of the evidential burden is the product of trial by jury and the possibility of withdrawing an issue from that body.

— See in general Cross on Evidence (1979), 87–91, Cross on Evidence, Australian Edition (1980), §4.4, Cross & Wilkins, An Outline of the Law of Evidence (1980), 29, Lilly, An Introduction in the Law of Evidence (1978), 44, Phipson on Evidence (1982), n. 4–07, John Henry Wigmore, Evidence in Trials at Common Law (1981), Vol. 9, §2488, Rothstein, Evidence in a Nutshell (1981), Ch. 2, 100, Curzon, Law of Evidence (1978), 49, Graham, Evidence (1983), 754–755, Graham, Federal Rules of Evidence in a Nutshell (1981), §303.3, 42, Glasbeek, Evidence, Cases and Materials (1977), p. 638, Glasbeek Australian Edition (1974), §11.40 ff., Hoffmann & Zeffert, South African Law of Evidence (1983), pp. 386 ff.

See also the California Evidence Code (1965) which stipulates:

§110. ‘Burden of producing evidence’ means the obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue.

The American Law Institute’s Model Code on Evidence (1942) explains:

Rule 1. …

(2) ‘Burden of producing evidence of a fact’ means the burden which is discharged when sufficient evidence is introduced to support a finding that the fact exists.

In fact, the notion is unknown in continental law systems, and for good reason. It only makes sense in the adversary trial system and when a jury decides about the facts; the judge’s function is in so far one of controlling and instructing the lay persons composing the jury. The burden of producing evidence is not an obligation or a duty; it simply represents a risk: the risk to not being able to produce evidence satisfactory to the court.

— Cross on Evidence (1979), 91, Phipson and Elliott, Manual of the Law of Evidence (1980), 37, who state: ‘Although the two parts of the tribunal are separate in function, the English system of trial has always been marked by a high degree of control by the judge of the jury. The judge is in control to a much greater extent than in, say, the United States.’ For the instruction about the allocation of the burden of proof, see Phipson and Elliott, Manual of the Law of Evidence (1980), 62, Model Code on Evidence, Rule 1, comment on §§(2) and (3), 73–74: ‘In a jury case this means that the party has to satisfy this burden in order to escape an adverse peremptory instruction as to that fact.’ See Model Code on Evidence (1942), 74 and Curzon, Law of Evidence (1978), 49 under (b): ‘A failure by a party to discharge the evidential burden brings the risk … of that party’s failing on the issue, wholly or in part.’

The judge considers the evidence submitted by the parties and decides if

(i) the evidence has met the standard of proof; or

(ii) the evidence has not met the standard of proof.

The judge considers all evidence, not only the one submitted by the party that bears the evidential burden. This means that the party who bears the onus of proof can profit from proof submitted by the adversary. Cross and Wilkins write:

Although we speak of one party ‘bearing’ the burden of proof, or the burden of adducing evidence, it must be remembered that he may be able to rely on those parts of his adversary’s evidence which are favorable for him.

— Cross & Wilkins, An Outline of the Law of Evidence (1980), 27. See also Model Code on Evidence (1942), 74: ‘Neither the rules nor the decisions require that the evidence discharging either burden shall have been introduced by the party having the burden.’

Standard of Proof

When a prima facie case was made by the party who bears the evidential burden, and the judge decides that the evidence meets the applicable standard of proof, this has basically three consequences:

(i) the burden of proof is discharged;

(ii) the burden shifts to the other party;

(iii) the fact is proven if the other party cannot discharge their burden.

— Cross on Evidence (1979), 119–120 remarks that ‘no precise formulae have been laid down with regard to the standard of proof required for the discharge of the evidential burden and, as this is not a matter upon which it can ever be necessary for a judge to direct a jury, there is no reason why it should ever become a subject of formulae.’

The standard of proof regarding the evidential burden is not a matter that the judge must instruct the jury about; only the persuasive burden is. This is so because the judge alone renders this decision. Cross and Wilkins (1980) explain about the standard of proof for prima facie evidence that it necessitates ‘a finding that the fact is proved if the evidence is uncontradicted.’

— Cross & Wilkins, An Outline of the Law of Evidence (1980), 20. See also Graham, Federal Rules of Evidence in a Nutshell (1981), §301.4, 43, and Phipson and Elliott, Manual of the Law of Evidence (1980), 60: ‘ … if the evidence is believed, any reasonable man could infer that the fact exists.’

It flows from the principle of fair trial that each party must have the possibility to contradict the evidence submitted by the other party.

Consequently, when one party discharges their evidential burden, the other party gets the burden. This can be imagined as one party ‘inheriting’ the burden form the other party, or that the burden is ‘passed’ from one party to the other within the litigation game.

— Phipson and Elliott, Manual of the Law of Evidence (1980), 62: ‘It has been seen that the discharge of the evidential burden by one side puts the other side under a similar burden, or, as it is often put, ‘passes’ the burden upon him.’

This also has been called the shifting of the evidential burden, while it has to be seen that the persuasion burden never shifts. The ‘shifting’ is of course a juridical metaphor; the pretended ‘movement’ of the burden is in reality the idea of an equitable partition of the trial risk.

— Regarding the notion of a ‘shifting burden’, see Schwering, System der Beweislast im englisch-amerikanischen Zivilprozess (1969), 75–79 and Cross on Evidence, Australian Edition (1980), §§4.9 ff. Curzon, Law of Evidence (1978), 50, remarks: ‘This phrase indicates the moving, during the trial, of the burden of proof from one side to another, when one party has discharged his obligation of proof.’

Eggleston writes:

It is often said that although the legal burden of proof remains throughout the trial where it was at the beginning, the evidential burden may shift from one party to the other. All this really means is that as a case proceeds, one party or the other will produce evidence that, if it remained unchallenged, would entitle the party producing it to a decision in his favour. In this sense he can be said to have shifted the burden of proof to the other party.

— Sir Richard Eggleston, Evidence, Proof and Probability (1983), 27.

Another result that flows out from this system is that when a prima facie case was not refuted or ‘rebutted,’ the fact is considered to have been proven. The court has no obligation to arrive at this conclusion, but there is a high probability that the court decides on the lines of an uncontradicted prima face case.

— While normally the expression ‘rebutting’ is used only for presumptions, I have found it in the literature in one instance. Hoffmann & Zeffert, South African Law of Evidence (1983), 404 ff. speak of ‘rebutting a prima facie case.’ In some sense, a prima facie case works like a presumption, while it’s technically speaking not the same. See also Cross on Evidence (1979), 28.

The only case a judge is obliged to render a verdict in a particular way is when a statute puts up a general rule that contains a legal presumption. In case the presumption was not rebutted, the judge’s verdict must follow the general rule stipulated in the statute.

Similarly, when the prima facie evidence was not meeting the applicable standard of proof, the judge must render a decision adverse to the burdened party. In this case, one could also speak of the risk of producing evidence satisfactory to the court was realized against the party who was charged with it.

— Cross on Evidence (1979), 27, Graham, Federal Rules of Evidence in a Nutshell (1981), §301.4, 43

Incidence

At the beginning of the trial, the evidential burden is with the party who bears the persuasive burden.

— 550(b) of the California Evidence Code stipulates: ‘The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to this fact.’ (West’s Ann.Cal.Evid.Code §550, Vol. 29B, 508)

As Cross on Evidence (1979) puts it:

As a general rule, the burden of adducing evidence is borne by the party who bears the burden of proof.

— Cross on Evidence (1979), 95. See also Cross & Wilkins, An Outline of the Law of Evidence (1980), 29.

When the evidential burden is discharged, it is said to shift to the other party. Because of this assumed shifting of the evidential burden, and because it is temporarily with one and then the other party, it is also called provisional burden. Lord Denning explains in Brown v. Rolls Royce Ltd.:

Brown v. Rolls Royce Ltd. (Lord Denning)

My Lords, the difference between the judges of the Court of Session turned to the onus of proof. (…) The difference of opinion shows how important it is to distinguish between a ‘legal burden’, properly so called, which is imposed by the law itself, and a ‘provisional’ burden which is raised by the state of the evidence. [1960] 1 W.L.R. 210, 215 (H.L.).

As only at the start of the trial the two burdens are united, at any other point in time during the trial a test has to be effected for the determination of who bears the evidential burden. This test has been inserted in various statutes; here is the one provided by the California Evidence Code:

California Evidence Code

§550 Party who has the burden of producing evidence (a) The burden of producing evidence as to a particular fact is on the party against whom a finding on that fact would be required in the absence of further evidence. (West’s Ann.Cal.Evid.Code §550, Vol. 29B, 508).

It is noteworthy in this context that also Nigeria’s Evidence Act details in §136:

§136 Evidence Act of Nigeria

(1) In Civil cases the burden of first proving the existence or nonexistence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, (…) (2) If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively, until all the issues in the pleadings have been dealt with. (Reproduced in Akinola Aguda, Law and Practice Relating to Evidence in Nigeria (1980), n. 21–03).


The Persuasive Burden

Standard of Proof

We have already seen that the term burden of proof, in the sense to encompass both evidential and persuasive burden, and the term standard of proof are to be distinguished according to their different functions.

— See in general Walker & Walker, The English Legal System (1985), 617, Curzon, Law of Evidence (1978), 60, Cross on Evidence (1979), 110, Cross & Wilkins, An Outline of the Law of Evidence (1980), 36, Phipson on Evidence (1982), n. 4–35, Eggleston, Evidence, Proof and Probability (1983), 129, Glasbeek, Evidence Cases and Materials (1977), 594, Schwering, System der Beweislast (1969), 79–85.

The standard of proof, as we have already seen in our discussion of the evidential burden, is the measure for assessing a certain proof being adequate and sufficient for proving a certain fact.

Generally put, standard of proof is thus a measure for the adequateness of the proof presented. All evidence must meet a certain standard to be adequate, to be sufficient; as a result, all evidence has to be evaluated by the judge for meeting the standard of proof applicable in the particular litigation.

This is a very important function of the judge and it’s because of this function that the saying is that for a litigation to win, you have to ‘pass the judge;’ the next step, then, convincing the jury is the final or ultimate burden. For example, if a good lawyer on the defendant’s side, who wants to avoid the unpredictable verdict of a jury, can convince the judge that the evidence presented by the plaintiff is insufficient for meeting the standard of proof, the trial will end right there, and it will be ended not by the jury, but by the judge. The verdict will be that the plaintiff was not able to establish a prima face case for his allegations. That is always an elegant strategy for a lawyer to pursue.

It is to be noted that for establishing a prima face case, the standard of proof in Anglo-American evidence law is lower than, for example, in German law where the conviction of the judge is required.

— §281, 1, ZPO and Prütting, Gegenwartsprobleme der Beweislast (1965), 58 ff. and Rosenberg-Schwab, Zivilprozessrecht (1981), 253.

The standard of proof that is sometimes also called ‘quantum of proof,’ in fact requires only a preponderance of probability.

— See Glasbeek, Evidence Cases and Materials (1977), 594, Hoffmann & Zeffert, South African Law of Evidence (1983), 409 ff., Glasbeek Australian Edition (1974), §§11.02 ff.

As a general rule, the standard of proof is a preponderance of probability.

— See James & Hazard, Civil Procedure (1977), §7.6, 243: ‘The usual formulation of the test in civil cases is that there must be a preponderance of evidence in favour of the party having the persuasion burden (the proponent) before he is entitled to a verdict’. See also Lilly, An Introduction to the Law of Evidence (1978) 41: ‘ … in a typical civil case, a party must prove the elements of his claim by a preponderance of the evidence (sometimes expressed by the phrases ‘greater weight of the evidence’ or ‘more probable than not’). The same is stated for Canada in the U.L.C.C. Report 1982, §2.3(a), 23.

Cross on Evidence (1979), op. cit. 111 ff. at 118, speaks of three standards of proof in the American evidence law; if this standard differs from what is recognized as standard of proof in British law, is however not explicated by the author.

Three standards of proof appear to be recognized in the United States, proof by ‘clear, strong and cogent’ evidence laying midway between proof on a preponderance of probability and proof beyond reasonable doubt.

A fact is proved when the proof submitted by one party has a surplus of probability over the proof submitted by the other party, or, in the words of Lord Denning ‘… if the evidence is such that the tribunal can say we think it more probable than not.’ (Miller v. Minister of Pensions, [1947] 2 All E R 372, 373–374). On the other hand, when the probabilities are equal, the fact is not proven.

In case of a non liquet, a situation where it’s impossible for the judge to make a finding of the fact, it’s the persuasion burden that as it were renders the decision: the party that bears the persuasion burden will lose the trial.

Finding of a fact means ‘determining that its existence is more probable than its non-existence.’

— See Model Code on Evidence (1942), Rule 1(5).

Like the evidential burden, the persuasive burden is always related to a particular issue or fact; that is why we have to distinguish the facts that are at the basis of the action, and those at the basis of the defense.

However, this distinction is often simplified when its about the facts that are constituent for the action. For example, Lord Edmund Davis states in the case Chapman v. Oakleigh Animal Products, Ltd that ‘the golden rule is that the onus of proof is on the plaintiff.’ [1970] 8 KIR 1063, 1072.

Presumptions are particular in that they link several facts, generally two, as the Model Code on Evidence (1942) stipulates in its Rule 701:

(1) Basic Fact Basic fact means the fact or group of facts giving rise to a presumption. (2) Presumption/Presumed Fact Presumption means that when a basic fact exists the existence of another fact must be assumed, whether or not the other fact may be rationally found from the basic fact. Presumed fact means that fact which must be assumed.

Presumptions influence the burden of proof, however, only the evidential burden; they do not shift the persuasion burden.

— Walker & Walker, The English Legal System (1985), 606–610, Halsbury’s Laws of England, §§111 ff., Cross on Evidence (1979), 121 ff., Phipson on Evidence (1982), n. 4–23 ff., Phipson & Elliott, Manual of the Law of Evidence (1980), 75, Lilly, An Introduction to the Law of Evidence (1978), 47, Model Code on Evidence (1942), 306 ff.

Rule 301 of the Federal Rules of Evidence, applicable for proceedings in United States federal courts, stipulate this expressly:

Federal Rules of Evidence

Rule 301. Presumptions in General in Civil Actions and Proceedings In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on a party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally set.

Notion and Function

The persuasive burden represents, for the party that bears it, the risk of nonpersuasion, which is the risk of not being able to convince the trier of fact of a certain alleged issue in trial.

— See Wigmore, Evidence in Trials at Common Law (1981), Vol. 9, §2485, Cross & Wilkins, An Outline of the Law of Evidence (1980), 27, Lilly, An Introduction to the Law of Evidence (1978), 41. The term ‘trier of fact’ is defined in the Model Code on Evidence (1942), Rule 1(14), p. 72: ‘Trier of fact includes a jury, and a judge when is is trying an issue of fact other than one relating to the admissibility of evidence.’

It is distinct from the evidential burden in that it never shifts. This is why the persuasive burden is also called fixed burden of proof.

— See, for example, Glasbeek, Evidence Cases and Materials (1977), 634, Halsbury’s Laws of England, §13, Phipson on Evidence (1982), n. 4–07, Lilly, An Introduction to the Law of Evidence (1978), 45, Graham, Federal Rules in a Nutshell (1981), §301.5, 45.

It always stays with the party that bears it due to the applicable substantive law or the pleadings.

— Cross on Evidence (1979), 87. Halsbury’s Laws of England, §13, Phipson on Evidence (1982), n. 4–06. Sometimes, in the literature there is question of a ‘burden of pleadings.’ The expression is awkward as the burden of pleadings can’t be a valid guideline for finding out about the incidence of the persuasive burden, see Schwering, System der Beweislast im englisch-amerikanischen Zivilprozess (1969), 99–100, and 90.

For this reason, it also is called ultimate burden, while we have seen that the evidential burden is a provisional burden. The reason why this burden does not shift is to see in its procedural function; it is not related to the production of evidence but enters the stage after all evidence has been produced: it then allows to render a clear verdict in favor of one party. Cross and Wilkins write:

The burden of proof is crucial when all evidence is in. It makes itself felt at a later stage than the burden of adducing evidence.

— Cross & Wilkins, An Outline of the Law of Evidence (1980), 27. See also Curzon, Law of Evidence (1978), §5, 48, Phipson and Elliott, Manual of the Law of Evidence (1980), 51, Lilly, An Introduction to the Law of Evidence (1978), 41.

Incidence

The general rule is ei qui affirmat non ei qui negat incumbit probatio. That means the one who affirms a fact, be it positive or negative, must prove it, and not the one who contests the fact.

— Phipson on Evidence (1982), n. 4–02, Eggleston, Evidence, Proof and Probability (1983), 103. A synonymous expression is ‘ei incumbit probatio qui dicit, non qui negat,’ see Cross on Evidence (1979), 97, Sarkar’s Law of Evidence (1981), §101, Cross on Evidence, Australian Edition (1980), §§4.13 ff., Hoffmann & Zeffert, South African Law of Evidence (1983), 396 ff.

It would not be logical to ask for a simple negation to be proven because the latter is the very reason that the initial allegation needs to be proven in the first place. A plaintiff who meets a defendant who fully complies with the demand of the plaintiff does not need to prove anything. In such a case, not a real litigation takes place but a peaceful settlement. Only facts that are contested need to be proven. This is a general principle valid for all jurisdictions.

In this simple rule, there are contained actually three different principles:

(1) The one who affirms a fact must prove it;

(2) The one who contests a fact is not obliged to prove his negation of the fact;

(3) The one who affirmatively contests a fact must prove his affirmative defense.

It is both logical and reasonable to put the burden of proof on the party that invokes a right as a lawful consequence of certain alleged facts.

— See Glasbeek, Evidence Cases and Materials (1977), 634: ‘Each party will wish to have certain facts found so that the pertinent substantive law will be applied in his favour. Accordingly, it is logical to place the risk of non-persuasion, i.e. the legal burden, in respect of each fact-in-issue on the party who will fail in his claim if the fact-in-issue is not found to exist.’

This is in the general case the plaintiff or the party that would lose the trial if there was no evidence in court.

— See Cross & Wilkins, An Outline of the Law of Evidence (1980), 28: ‘The question is usually not a particularly difficult one, for a fundamental requirement of any judicial system is that the person who desires the court to take action must prove his case to its satisfaction. This means that, as a matter of common sense, the burden of proving of all facts to their claim normally rests upon the plaintiff.’ See also Cross on Evidence (1979), 96 and Halsbury’s Laws of England, §14: ‘The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied’, citing Dickinson v. Minister of Pensions, [1953] 1 Q.B. 228, 232, [1952] 2 All E R 1031, 1033. This principle is expressed in the Indian Evidence Act, §101, in the following way: ‘Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies upon that person.’ Regarding Pakistan, which has adopted the Indian Evidence Act, see The Pakistan Code, Vol. II, 1, at 46. Kenya equally has literally overtaken the Indian Evidence Act, see §107 of the Evidence Act of Kenya, Laws of Kenya, Rev. Ed. 1977, Chap. 80, p. 37. For Nigeria, see §134 of the Evidence Act of Nigeria, cited by Aguda, Law and Practice Relating to Evidence in Nigeria (1980), 237.

Regarding sovereign immunity, the question who bears the burden of proof for the facts that are decisive for sovereign immunity to be granted is a procedural question; from this question has to be distinguished who in the trial bears the burden of proof regarding the applicable substantive law.

If, for example, the plaintiff sues a foreign state as a consequence of a commercial contract with that state, two different questions regarding the burden of proof have to be asked. The first question regards the contract itself, on which the action is based. The facts that establish this contract have to be proven by the plaintiff. The second question is who bears the burden of proof for the defense of immunity for jurisdiction, which is a question pertaining to adjective law.

This can be demonstrated more in detail with the example of one of the statutes on sovereign immunity to be discussed further down in this study, the UK’s State Immunity Act 1978, which stipulates that a contract for the supply of goods and services between the plaintiff and the foreign state is one of the exceptions that lead to a denial of sovereign immunity.

The existence of such a contract would establish both the material right of the plaintiff and the procedural right to pursue a legal action against the foreign state party of that contract, because of the denial of sovereign immunity in such a case. We can thus talk about a material and a procedural burden of proof, which in this case coincide, but which also may not coincide.

The burden of proof for the affirmation of a fact also encompasses the burden of proof for the negation of a fact, also called burden of disproof, if the party who bears the burden of proof alleges the nonexistence of a fact, or its negation. This is to say that the burden of proof is something functional in a trial, and not dependent on the nature of the allegations.

— Cross and Wilkins, An Outline of the Law of Evidence (1980), 28: ‘The rule is sometimes expressed in such maxims as ‘he who affirms must prove,’ but this must not be taken to mean that the burden of proof cannot lie upon a party who makes a negative allegation. There are numerous instances in which the plaintiff or prosecutor assumes the burden of proving a negative. (…) In these cases the phrase ‘burden of proof’ includes the burden of disproof.’ See also Wigmore, Evidence in Trials at Common Law (1981), Vol. 9, §2484, 288: ‘The burden is often on one who has a negative assertion to prove.’

This also can be demonstrated by an example. In all statutes on foreign sovereign immunity, the conditions under which courts may exert jurisdiction over foreign states are enumerated as exceptions from a general rule of immunity. Hence, if immunity is a defense, the foreign state would bear the burden of proof for the facts the are at the basis of the immunity claim.

This is the basic rule put up by the United States Foreign Sovereign Immunities Act, 1976. But the result of such a construct feels strange: the foreign state would have to disproof all the numerous exceptions in the statute for establishing his claim for immunity. This would put a heavy onus on foreign states in trials involving foreign sovereign immunity.

However, the drafting technique of the statute seems to suggest this outcome. Hence, if sovereign immunity is to be considered as an affirmative defense, the foreign state would clearly bear the burden of proof for the facts that are at the basis of the immunity defense. This is the application of the general rule of evidence that affirmative defenses need to be proven by the party who invokes them.

But the question here, which is a question not of procedural law, but of international law, is if sovereign immunity really is to be considered as an affirmative defense only because of the drafting technique of the statutes on foreign sovereign immunity?

Affirmative defenses need to be specially pleaded in order to be taken in consideration by the court.

— See, for example, Lilly, An Introduction to the Law of Evidence (1978), 42 and Cairns, Australian Civil Procedure (1981), 130

As a result the burden of proof lies on the defendant.

— Phipson and Elliott, Manual of the Law of Evidence (1980), 58, Lilly, An Introduction to the Law of Evidence (1978), 40. This is established case law.

However, this cannot be true because sovereign immunity has to be considered by the court sua sponte. While in the House Report to the FSIA 1976, it is explicated that sovereign immunity was an affirmative defense, this construction is in contradiction with international law, as it would render sovereignty an illusory concept.

As a result, later jurisprudence, especially, from the United States Supreme Court, made it clear that sovereign immunity has to be considered by the courts sua sponte and therefore cannot be construed as an affirmative defense because such a construction would be in violation of international law. The legal materials to the FSIA 1976 insofar contain an error and cannot be taken literally.

— The US Supreme Court decided this important question in Verlinden B.V. v. Central Bank of Nigeria (461 U.S.480, 103 S.Ct.1962, 76 L.Ed.2d 81, 51 U.S.L.W. 4567, 22ILM 647 (1983); in that case, the foreign state did not enter an appearance to assert an immunity defense. The Supreme Court ruled that in such a case a district court still must determine that immunity is unavailable under the FSIA, as this is a condition for the court’s jurisdiction (103 S.Ct.1962, 1971, note 20. Hence, the wording of the House Report that sovereign immunity is to be considered as an affirmative defense cannot be taken literally.

In principle, however, it is true that in all cases except affirmative defenses, the burden of proof is on the plaintiff. In addition, it has to be noted that the burden of proof is on the party who adds a new element to the pleadings.

— Graham, Federal Rules of Evidence in a Nutshell (1981), §301.2, p. 41 and Carlson v. Nelson, 285 N.W.2d 505, 204 Neb.765 (Neb.1979)

And to recapitulate it, the evidential burden follows the legal burden insofar. Interestingly so, even for affirmative defenses, the evidential burden follows the legal burden, but that situation both burdens are not on the plaintiff but on the defendant for establishing the affirmative defense.

— Coast Pump Associates v. Stephen Tyler Corp., 133 Cal.Rptr.88, 62 C.A.3d (Cal.App.1976) and Booth Newspapers Inc., v. Regents of University of Michigan, 280 N.W.2d 883, 90 Mich.App.99 (Mich.App. 1979).


Summary

The rules governing the burden of demonstrating a fact to be true by evidence are intimately related to the rules governing the burden of alleging a fact. As a general rule, the party who has the burden of pleading also has the burden of proof. The affirmative burden is applied to the pleadings and establishes a certain order in the probatory procedure; according to that order, the burden shifts from one party to the other.

However, the objective burden of proof is not related to the production of evidence, but decides the litigation in case of a non liquet, that is, an irresolvable doubt regarding any fact in question: the party who carries the objective burden, then, loses the case. This means, practically speaking, that the objective or legal burden enables the judge to render a verdict in a case where the truth cannot be found. It’s the applicable substantive law that attributes the objective burden. It’s also correct to denote this burden as the ultimate burden, as it does not shift.

In fact, because of the particular nature of the adversary litigation system and its bestowal of judicial cognition upon both judge and jury, evidence law in general, and the rules of the burden of proof, in particular, have a much higher importance under common law than in continental law.

It is to note that statutory regulations on civil procedure seldom contain rules of evidence or a precise allocation of the burden of proof, as for example the UK’s Civil Evidence Acts of 1968 and 1972, or South Africa’s Civil Proceedings Evidence Act No. 25 of 1965. This is systemically sound because the burden of proof is determined by the applicable substantive law, not civil procedure regulations.

There are however presumptions to be found in American civil procedure laws, in the rules No. 301 of the Federal Rules of Evidence (28 U.S.C.A.) and in the Uniform Rules of Evidence, 13 U.L.A. Civ. Proc. 227. A detailed regulation of evidence rules was worked out by the American Law Institute and was inserted in the Model Code of Evidence (1942). Similar rules are to be found in the California Evidence Code. As to Canada, the Uniform Evidence Act contains very detailed provisions regarding the burden of proof.

The general rule is that the judge adjudicates about legal questions, while the jury decides about the facts, but there are several exceptions to this rule. In addition, it has to be seen that more and more litigations are held without a jury; in such a case, the judge is said to take over the two functions in one person. However, in principle, the particularities and rules of the burden of proof have not changed for that reason. Phipson & Elliott write: ‘Now the trial is usually before the judge alone, but the two separate functions remain. The judge performs them both, but he must take care to keep them separate.’

It is important to remember that evidence law has been marked by the particularity of the jury trial, and that is why the strict separation of the functions of judge and jury even applies when the judge decides alone. In the United States, the Federal Rules of Evidence detail the evidence procedure in federal jurisdiction. These rules, interestingly, also do not make a distinction between trials with or without jury, as they implicitly hold that for the latter category of trials, the judge performs both functions.

The main difficulty in understanding the concept of the burden of proof results from the fact that the term has more than one meaning. It was only at the end of the 19th century that, with the classical monograph of J. B. Tayer, A Preliminary Treatise on Evidence (1898), the legal profession began to build awareness about the need to clarify the matter.

The two burden have to be distinguished; they are called principle burdens.

So far there is unanimity in the literature; on the details, however, the literature greatly vacillates. Cross distinguishes further between provisional and ultimate burden and between shifting burdens and rebuttable presumptions. Sometimes even a third burden is added, that is called the burden of pleadings, while in reality this burden is a consequence of the legal burden.

And Phipson to add a 4th burden, the burden of establishing the admissibility of the evidence.

In fact, the admissibility of proof by the judge is of high importance in the adversary trial as lay persons are going to decide about the evidence; as a result, it is crucial which evidence is admitted and which is refused by the judge, whose role is to supervise the trial game with his ‘legal eye’, as juries can be rather unpredictable in their verdicts. But apart from this rather fancy expansion of the system, most authors and the overwhelming number of precedents admit a dualistic system with two principle burdens. These principle burdens are:

(1) The persuasive burden, legal burden or risk of non-persuasion of the jury;

(2) The evidential burden, burden of adducing evidence or duty of producing evidence to the judge.

The presentation of evidence is a regulated and orderly ritual. It starts with the party who bears the evidential burden to address their proof to the judge. The judge decides if a prima facie case has been made, and then instructs the jury to pronounce the final decision regarding the evidence offered by both parties. This is often expressed in the terms that the parties have to ‘pass the judge and convince the jury’.

It’s in that moment that the persuasion burden comes to play its decisive role.

The Evidential Burden

There is a special relationship between the expressions evidential burden, prima facie evidence and standard of proof. The party that bears the persuasive burden has the right to begin with presenting evidence to the judge, and as a general rule, the evidential burden follows the persuasive or legal burden.

If, exceptionally, the legal burden is on the defendant, it’s the defendant who has the right to begin. The right to begin also has been called ‘onus probandi.’

As in principle the legal burden is on the plaintiff, it’s the plaintiff who usually begins to produce evidence. For every single issue, evidence is thus produced. This is not a particularity of civil procedure, but a general principle. We already learnt that every proof must relate to a specific fact in issue, otherwise it would be off-track and irrelevant.

As a result, a burden of proof ‘in general’ is inconceivable. For every fact in issue, there is a burden of proof that one of the parties is charged with. Cross on Evidence expresses it this way: “In the context of the law of evidence, the expression ‘burden of proof’ is meaningless unless it is used with reference to a particular issue.’ (Id., 29).

The judge considers the evidence in the light of the applicable standard of proof and decides if a prima facie case was established. Standard of proof is a measure for the adequateness of the proof presented. All evidence must meet a certain standard to be adequate, to be sufficient; as a result, all evidence has to be evaluated by the judge for meeting the standard of proof applicable in the particular litigation.

Cross on Evidence writes that the concept of the evidential burden is the product of trial by jury and the possibility of withdrawing an issue from that body.

In fact, the notion is unknown in continental law systems, and for good reason. It only makes sense in the adversary trial system and when a jury decides about the facts; the judge’s function is in so far one of controlling and instructing the lay persons composing the jury.

The burden of producing evidence is not an obligation or a duty; it simply represents a risk: the risk to not being able to produce evidence satisfactory to the court.

The judge considers the evidence submitted by the parties and decides if

(i) the evidence has met the standard of proof; or

(ii) the evidence has not met the standard of proof.

The judge considers all evidence, not only the one submitted by the party that bears the evidential burden. This means that the party who bears the onus of proof can profit from proof submitted by the adversary.

When a prima facie case was made by the party who bears the evidential burden, and the judge decides that the evidence meets the applicable standard of proof, this has basically three consequences:

(i) the burden of proof is discharged;

(ii) the burden shifts to the other party;

(iii) the fact is proven if the other party cannot discharge their burden.

The standard of proof regarding the evidential burden is not a matter that the judge must instruct the jury about; only the persuasive burden is. This is so simply because the judge alone renders this decision. Cross and Wilkins explain about the standard of proof for prima facie evidence that it necessitates a finding that the fact is proved if the evidence is uncontradicted.

It flows from the principle of fair trial that each party must have the possibility to contradict the evidence submitted by the other party. Consequently, when one party discharges their evidential burden, the other party gets the burden. This can be imagined as one party ‘inheriting’ the burden form the other party, or that the burden is ‘passed’ from one party to the other within the litigation game.

This also has been called the shifting of the evidential burden, while it has to be seen that the persuasion burden never shifts. The ‘shifting’ is of course a juridical metaphor; the pretended ‘movement’ of the burden is in reality the idea of an equitable partition of the trial risk. Another result that flows out from this system is that when a prima facie case was not refuted or ‘rebutted,’ the fact is considered to have been proven.

The court has no obligation to arrive at this conclusion, but there is a high probability that the court decides on the lines of an uncontradicted prima face case.

The only case a judge is obliged to render a verdict in a particular way is when a statute puts up a general rule that contains a legal presumption.

In case the presumption was not rebutted, the judge’s verdict must follow the general rule stipulated in the statute. Similarly, when the prima facie evidence was not meeting the applicable standard of proof, the judge must render a decision adverse to the burdened party.

In this case, one could also speak of the risk of producing evidence satisfactory to the court was realized against the party who was charged with it.

At the beginning of the trial, the evidential burden is with the party who bears the persuasive burden. When the evidential burden is discharged, it is said to shift to the other party. Because of this assumed shifting of the evidential burden, and because it is temporarily with one and then the other party, it is also called provisional burden.

As only at the onset of the trial the two burdens are united, at any other point in time during the trial a test has to be effected for the determination of who bears the evidential burden.

The Persuasive Burden

We have already seen that the term burden of proof, in the sense to encompass both evidential and persuasive burden, and the term standard of proof are to be distinguished according to their different functions.

The standard of proof, as we have already seen in our discussion of the evidential burden, is the measure for assessing a certain proof being adequate and sufficient for proving a certain fact.

Generally put, standard of proof is thus a measure for the adequateness of the proof presented. All evidence must meet a certain standard to be adequate, to be sufficient; as a result, all evidence has to be evaluated by the judge for meeting the standard of proof applicable in the particular litigation.

This is a very important function of the judge and it’s because of this function that the saying is that for a litigation to win, you have to pass the judge; the next step, then, convincing the jury is the final or ultimate burden. For example, if a good lawyer on the defendant’s side, who wants to avoid the unpredictable verdict of a jury, can convince the judge that the evidence presented by the plaintiff is insufficient for meeting the standard of proof, the trial will end here, and it will be ended not by the jury, but by the judge. The verdict will be that the plaintiff was not able to establish a prima face case for his allegations. As a general rule, the standard of proof is a preponderance of probability.

A fact is proven when the proof submitted by one party has a surplus of probability over the proof submitted by the other party, or, in the words of Lord Denning ‘… if the evidence is such that the tribunal can say we think it more probable than not.’ On the other hand, when the probabilities are equal, the fact is not proven.

In case of a non liquet, a situation where it’s impossible for the judge to make a finding of the fact, it’s the persuasion burden that as it were renders the decision: the party that bears the persuasion burden will lose the trial. Finding of a fact means ‘determining that its existence is more probable than its non-existence.’

Like the evidential burden, the persuasive burden is always related to a particular issue or fact; that is why we have to distinguish the facts that are at the basis of the action, and those at the basis of the defense. However, this distinction is often simplified when its about the facts that are constituent for the action.

Presumptions are particular in that they link several facts, generally two, as the Model Code on Evidence (1942) stipulates in its Rule 701. Presumptions influence the burden of proof, however, only the evidential burden; they do not shift the persuasion burden.

The persuasive burden represents, for the party that bears it, the risk of nonpersuasion, which is the risk of not being able to convince the trier of fact of a certain alleged issue in trial. It is distinct from the evidential burden in that it never shifts.

This is why the persuasive burden is also called fixed burden of proof. It always stays with the party that bears it due to the applicable substantive law or the pleadings.

For this reason, it also is called ultimate burden, while we have seen that the evidential burden is a provisional burden. The reason why this burden does not shift is its procedural function; it is not related to the production of evidence but enters the stage after all evidence has been produced: it then allows to render a verdict in favor of one party. The general rule is ei qui affirmat non ei qui negat incumbit probatio. That means the one who affirms a fact, be it positive or negative, must prove it, and not the one who contests the fact. In this simple rule, there are contained actually three different principles:

(1) The one who affirms a fact must prove it;

(2) The one who contests a fact is not obliged to prove his negation of the fact;

(3) The one who affirmatively contests a fact must prove his affirmative defense.

Only facts that are contested need to be proven. This is a general principle valid for all jurisdictions. It is both logical and reasonable to put the burden of proof on the party that invokes a right as a lawful consequence of certain alleged facts. This is in the general case the plaintiff or the party that would lose the trial if there was no evidence in court.

The burden of proof for the affirmation of a fact also encompasses the burden of proof for the negation of a fact, also called burden of disproof, if the party who bears the burden of proof alleges the nonexistence of a fact, or its negation. This is to say that the burden of proof is something functional in a trial, and not dependent on the nature of the allegations.

In principle, in all cases except affirmative defenses, the burden of proof is on the plaintiff. In addition, it has to be noted that the burden of proof is on the party who adds a new element to the pleadings.

To recapitulate, the evidential burden follows the legal burden. Even as far as affirmative defenses are concerned, the evidential burden follows the legal burden: in that situation both burdens are on the defendant for establishing the affirmative defense.

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