Once the initiator presents their prima facie case, the question then becomes
where the needle finishes at the end of the trial. Rule 2 determines where on the
initiator and responder’s scales this finishing point lies.
Here is a summary of this rule, which can also be called the start rule. The
burden of proof determines the point on the scale of proof where the case
starts:
(1)
Basic Operation. The basic operation is that the initiator must prove
their case. This means that:
(i)
Initiator. The needle starts at 0% for the initiator. The initiator has
it all before them.
(ii)
Responder. The needle starts at 100% for the responder. The
responder is presumed innocent (in a criminal case) or not liable (in a civil
case) .
(2)
Defences. There are special start rules for defences.
Rule 2: Finishing Point
Rule 1 determines the burden of proof, by stipulating where the needle lies at
the start of a case. Rule 2 determines the minimum point on the scale where the
needle must rest for the initiator to win their case.
Core Rules
The core common law rules are as follows:
(1)
Civil Case. The initiator must prove their case according to the
preponderance of evidence, preponderance of probabilities or balance of
probabilities. For this, the needle is at 51% on the initiator’s scale, which
represents 49% on the responder’s scale.
(2)
Criminal Case. The initiator must prove their case beyond reasonable
doubt. Conventionally this is not given a quantitative measure but for purposes
here it is taken to be 99%. This means that the needle is on 99% on the
initiator’s scale, which represents 1% on the responder’s scale.
(3)
Defences: Civil and Criminal Cases. There are special finish rules for
defences for both civil cases and criminal cases.
Dual Analysis
The standard of proof for an initiator determines where the needle must be on
their scale for them to win the case. However, by applying the
complementarity rule (under which proof to a standard of X% by one party
means the other party has proved to a standard of 100-X%) we also indicated
above the standard of proof from the perspective of the responder as well as
the initiator.
There are advantages in identifying the standard for the responder because it
indicates three important things. It directly represents the maximum losing
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