My thinking is with respect to very serious issues wherein getting the correct resolution is very important. Usually the burden seems to be on one party or another, but I wonder if there are cases or situations where both parties are burdened with justifying their positions?

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    I may be mistaken but aren't all cases like this? The plaintiff must argue their position and the defendant theirs... Jack sues Alice for not delivering on time and Alice defends her position by saying Jack kept changing colors. It's on Jack to prove he was allowed to do that and Alice must prove that he was not. They both have burden of proof...
    – Ron Beyer
    May 23 at 19:43
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    Both parties may present evidence, but normally the burden is on only one,or on only one at a given point in time. When a party shows a prima facie case, the burden may shift to the defense to disprove it. If the defense shows plausible evidence of an active defense, the burden may shift back to disprove or counter the defense. May 23 at 23:21
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    So then what would happen if neither party shows any evidence at all? They somehow both lose? May 24 at 5:26
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    There would need to be a ruling when both parties fail to meet their burden of proof, so ultimately you need to place the (initial) burden on one party or the other (and this burden may shift as parties meet their burden). You don't have a burden of proof placed on you when the court would find in your favour if you do nothing.
    – NotThatGuy
    May 24 at 8:40
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    @NotThatGuy: Could both parties bear the burden of having to prove that they should not be cited for contempt for wasting the court's time?
    – supercat
    May 24 at 17:09

2 Answers 2


Are there cases or situations where both parties are burdened with justifying their positions?

Yes, but different standards are applied.

One example is the "reverse burden of proof" placed on the defendant in section 1(1) of the Prevention of Crime Act 1953:

Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence...

The prosecution have to prove "beyond a reasonable doubt" that the article is actually an offensive weapon and that the named defendant possessed it on a particular date and that s/he was in a public place at the time.

Whereas the standard of proof for the defendant to show they had lawful authority or a reasonable excuse for having is the, lower, "balance of probabilities".

Similar legislation, for a similar offence, at section 139 of the Criminal Justice Act 1988 states that:

(4)It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place.

(5)Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under this section to prove that he had the article with him—

  • (a)for use at work;

  • (b)for religious reasons; or

  • (c)as part of any national costume.

Which, again, is on the balance of probabilities. See, for example, R v Lambert [2001] UKHL 37:

If [a legal burden of proof on an accused] is created the matter in question must be taken as proved against the accused unless he satisfies the jury on a balance of probabilities to the contrary...

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    Do these laws specify “balance of probabilities” for these particular defenses anywhere? Or is that a general thing for defendants, or even a general default to which the “beyond a reasonable doubt” standard is, despite being the best-known standard, actually an exception?
    – KRyan
    May 24 at 20:16

Generally speaking, the ultimate burden of proof is placed upon one party or another. But sometimes there is what is called a "burden of production" that involves some evidentiary showing that an issue is present before the burden of proof is implicated.

For example, no evidence needs to be presented regarding self-defense in a criminal case until the defense meets a burden of production to show that self-defense is an issue presented in a case, even if the ultimate burden of proof once the burden of production is satisfied and the issue goes to a jury is on the prosecution.

  • Do you mean, presumably, that the prosecution is burdened to show the self-defense was NOT an issue?
    – Jiminion
    Jun 7 at 13:57

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