Publication Date:
2014-09-02
Description:
Burdens and standards of proof are primarily concerned with minimizing the expected cost of error. This probabilistic goal explains both the levels at which general standards of proof are set, and the general allocation of burdens of proof to the plaintiff or prosecution. Variations from these general positions, achieved through presumptions and affirmative defences, can also be understood as directed towards minimizing expected error costs. This model describes the operation of many presumptions and defences, and also provides a normative basis for criticising presumptions and defences that fail to minimize the expected cost of error. However, it struggles with classes of cases where one side of the dispute faces systemic proof difficulties. Minimizing error costs would lead to an expectation of a serious imbalance in error rates; however, varying the standard of proof to equalize error rates would fail to minimize error costs. This is a genuine dilemma. No solution is offered.
Print ISSN:
1470-8396
Electronic ISSN:
1470-840X
Topics:
Mathematics
,
Law
