If the burden of proof lies on the plaintiff, how could the plaintiff prove the defendant didn't pay for an item removed from a store.

From what I understand a negative can't be proven.

In this case isn't it always possible that the item was paid for, but the record of it isn't brought forward? How are we to take the word of the plaintiff on this matter that they aren't withholding evidence when no evidence exists?

I'm not actually concerned with the specifics here, but more so on how a case like this where everything lies in the absence of some event occurring is the cause of a crime is handled.

  • A negative can be proven beyond reasonable doubt, which is enough. If you paid, a record of your payment is very likely with your bank or with your credit card company. And if you paid, you most likely have a receipt. And a video recording showing you putting a bottle of expensive brandy into your coat pocket and then walking out of the store is pretty good evidence.
    – gnasher729
    Commented Sep 14, 2015 at 23:04

3 Answers 3


The need to prove a negative arises only from the way you've phrased the problem.

In the UK, theft is defined as

  1. dishonestly
  2. appropriating
  3. property
  4. belonging to another
  5. with the intention of permanently depriving its legitimate owner of it.

All five elements must be proved in order to secure a conviction for theft.

In the case of an item removed from a store, the prosecution must prove beyond a reasonable doubt that—

  1. the defendant had a dishonest intent;
  2. the defendant appropriated the item (treated it as his own);
  3. the item was 'property' (straightforward in this case);
  4. the item belonged to someone else (ditto); and
  5. the defendant intended to permanently deprive the owner of it.

Clearly proving that the defendant left the shop without paying would be an important element in proving (2) and (5) above. Note that the prosecution must prove that he left without paying, not that he did not pay. In this example, the prosecution might adduce CCTV or witness evidence of defendant leaving without paying.

If the defendant did pay for the item but doesn't have a receipt, he can still give witness testimony in his own defence. The prosecution is unlikely to have strong evidence to the contrary if payment was in fact made. The totality of evidence, put before a jury or summary court, will be considered in the round when establishing guilt.

  • 1
    I think in the USA leaving the store is not necessary, as long as the intent can be proven (based on the evidence). Things like hiding goods on your body would be such evidence.
    – gnasher729
    Commented Sep 14, 2015 at 23:07
  • Yes, this is more accurate than my answer.
    – Flup
    Commented Sep 15, 2015 at 13:23
  • 2
    @gnasher729: Fairly sure that moving goods from one part of a store to another (even secretly) is not theft. Until you actually leave, you may still intend to pay on exit. Commented Jan 14, 2017 at 16:00
  • @TimLymington: In many cases, what would matter is whether a prosecutor can convince a jury that actions where undertaken for the purpose of theft, and would have succeeded but for unforeseen circumstances. For example, suspect hides expensive item in cheap item. Someone picks up cheap item, but shortly after that suspect's girlfriend picks up a cheap item from that approximate location and checks out with it. It would likely be up to a jury to decide whether the suspect had relocated the item for the purpose of letting the girlfriend achieve it for the cost of the cheaper item.
    – supercat
    Commented Jan 10, 2023 at 17:11
  • @TimLymington: If security personnel had observed the above sequence of events before the person who picked the item checked out, they might reasonably have the cashier ask that the person allow a different item to be substituted, offering an apology and perhaps some token compensation for the hassle, on the basis that the person with the item shouldn't leave with it, but is likely unaware of its presence.
    – supercat
    Commented Jan 10, 2023 at 17:13

Prosecutor's evidence

Prosecutors prove theft with evidence. In this case, the most likely evidence would be:

  1. Witness testimony
  2. Video camera recording

Defendant's evidence

The defendant's goal at trial is to create reasonable doubt in the mind of the judge or jury.

Production of a purchase receipt by a defendant should be sufficient to create reasonable doubt for a judge or jury. If the defendant did not get a receipt or threw it away — stores keep records of every transaction via the checkout register. These records can be subpoenaed by the defendant for exculpatory purposes.

  • Of course, it's the prosecutors job to eliminate reasonable doubt: the defence doesn't have to create it
    – Dale M
    Commented Dec 16, 2016 at 7:29

First you probably mean prosecution, not plaintiff because this is criminal. Second, I think you need to back up and consider why the person is being accused. It's a fact-specific hypothetical your are posing but in the hypothetical the accusation starts with someone seeing the theft. So the way stores prove it is either by an eye witness or recorded video. Then either the video or the testimony is used as evidence.

If you have an example of accusation where the theft is not witnessed then let's address that but you'll need to provide specific facts.

Also, as purely my opinion, the U.S. justice system is messed up and a lot of people are accused of things like shoplifting without sufficient evidence. However they don't know what evidence is against them and they are convinced to plead guilty by a prosecutor. It's not like a public defender spends any time requesting and reviewing evidence. It goes more like, "So this will be your third offense and if convicted you'll go to jail. But if you plead blah blah blah then you won't go to jail but blah blah blah."

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