Diagram
These two scales from 0% to 100% showing the standard of proof for the
initiator and responder can be set out in the following diagram:
Initiator’s Scale
0%
20%
40%
50%
60%
80%
100%
100%
80%
60%
50%
40%
20%
0%
Responder’s
Scale
Total
100%
100%
100%
100%
100%
100%
100%
Total
Figure 25.1 Initiator’s and Responder’s Scales for the Standard of Proof
Rule 1 and Rule 2
Introduction
The preceding analysis enables us to see how, properly conceived, the burden
of proof and the standard of proof are not really two separate rules but two
sub rules within a rule governing proof. (i) One rule is labelled Rule 1: Starting
Point because it shows where on the scale a party must commence their proof.
Rule 1 is our version of what lawyers conventionally refer to as the burden of
proof or the onus of proof. (ii) The other rule is labelled Rule 2: Finishing
Point because it shows the point on the scale that a party must achieve in order
to prove their case. Rule 2 is our version of the rule that lawyers
conventionally refer to as the standard of proof.
Rule 1: Starting Point
The model for proving facts envisages a scale of proof ranging from a
certainty of a case not being true, 0%, to a certainty of a case being true,
namely 100%. Rule 1 determines the starting point. It tells us where on the
scales of the initiatory and responder the needle points when the initiator
commences their case.
Under the general common law rule the starting point for both civil and
criminal cases is 0% on the initiator’s scale, which amounts to 100% on the
responder’s scale. Nothing is assumed to have happened so everything has to
be proved. This is expressed in the basic rule of law determining the onus of
proof. Generally, the party who brings the case, the plaintiff or prosecutor, has
to prove it.
For an initiator, the first significant step towards proof is to put forward some
probative evidence for each element of the cause of action or crime. Lawyers
refer to the putting forward of this probative evidence for each element as
proposing a prima facie
case. A prima facie refers to a case that outwardly
covers everything that needs to be proved but without it being necessary that
the proof is sufficiently convincing.
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