When lawyers explain to their clients about the burden of proof and the shifting of such a burden, a glazed look passes on the face of the hapless client: “Don’t give me this legalese – surely all I have to do is come before the judge and tell my side of the story. What difference does it make who has this so-called burden of proof?”
But make no mistake: the question of who has to prove what can make or break a case.
What does the “Burden of Proof” actually mean, and why does it play such a crucial role in persuading the court to find in your favor?
Burden of proof is a philosophical concept that refers to the obligation to provide supporting evidence for a claim.
In fact, the requirement of the modern burden of proof is a vital safeguard of our freedom. You need to have sufficient evidence to logically back up your claim.
That seems pretty obvious to any modern person.
But it was not always so. No need to look too far and the burden of proof has nothing to do with logic. There are societies even in our own time that completely ignore the need to prove anything logically.
Not 100 kilometers from where this issue of The Jerusalem Report is published, lawsuits until very recently and even today are decided by a trial of ordeal. Bisha’a is a trial-by-fire test, a ritual still practiced by some Bedouin tribes of the Judean, Negev and Sinai deserts for the purpose of lie detection. It is one of the rituals in the Bedouin justice system for maintaining Sharaf, the Bedouin honor code.
The basic ritual consists of the accused being asked to lick a red hot metal object (spoon, ladle, rod, etc.) three times. He is provided with water for rinsing after the ceremony, and is then inspected by the official who presides over the ceremony – and by witnesses. If the defendant is found to have a scarred or burnt tongue, it is concluded that he was lying. Some Bedouin call this ritual “the true light of God.”
This practice is dying out because Israeli law has made this form of “justice” illegal. The British, when they ruled this country, also tried to outlaw it but to no avail. The British Foreign Office archives describe how widespread it was right up to the end of the Mandate. But today the practice is rare, with more and more Bedouin preferring standard courts of law for the enactment of justice.
If you venture out of the Middle East to so-called civilized Europe, all you need to look at regarding burden of proof are the witch hunts that continued into the late 18th century. They simply threw the suspected witch into a body of deep water. If the accused sank after being thrown into a river, they were considered innocent, whereas if they floated, this indicated witchcraft. Catch-22. You could not win either way: you either drowned or were put to death because you floated. No wonder people wanted to avoid the courts at all costs. A witch trial including this ordeal took place in Szeged, Hungary, as late as 1728!
In England too there were trials by being thrown into deep water. A witch floated by the nature of being a witch, and this demonstrated her guilt. If she drowned, she was innocent – not much of a compensation, but at least she died with her reputation intact.
The ancient Code of Hammurabi dictated that if a man was accused by another, the accused was to leap into a river. If the accused survived this ordeal, the accused was to be acquitted. Much more logical than more recent European practices, although still a very disturbing way to dispense justice. And those who learned how to swim were definitely ahead of the game.
In more civilized societies such as our own, the burden of proof is always on the person who brings a claim in a dispute. It is often associated with the Latin maxim, semper necessitas probandi incumbit ei qui agit, a translation of which in this context is: “The necessity of proof always lies with the person who lays charges.”
The Jewish origins of the Burden of Proof
But jurists who often quote that Latin maxim don’t realize that the concept of Burden of Proof has its origin deep in Jewish law, formulated much earlier than the Roman maxim mentioned above.
In the second century, Rabbi Judah the Prince (Hanassi) was living in Tzipori in the north of Israel busy redacting the Mishna, the earliest Jewish judicial document, which in itself reflected an oral law dating back several centuries earlier. In the Mishna (Baba Kama 3:11), there is a description of an incident where a neighbor accused a person that his ox had caused damage to his field, and there appear the eternal lines (used every day in Israeli courts) of הַמּוֹצִיא מֵחֲבֵרוֹ עָלָיו הָרְאָיָה, which means that if you make a claim you have the burden to logically prove it, and that is precisely the basis of our modern Burden of Proof.
But do you have to prove your case every time you make a claim?
Not necessarily. For example, if you come to court carrying a document that purports to be a will, and somebody contests that will, the burden of proof is not on the person wanting the will to be upheld.
The legal presumption is that if it looks like a will – properly signed and dated and witnessed – then it is a valid will. That is the status quo. Anyone who states otherwise has to prove that they are right, and that for some reason the will is not valid.
If Jacob comes to court and presents a will signed by his uncle leaving him a substantial estate, it will be presumed valid. If Jacob’s cousin, Jonathan, rushes into court and claims that the signature is fake and not the uncle’s at all, he has to bring proof to persuade the judge of his assertion.
Theoretically, the person who does not have the burden of proof, such as Jacob, has to do very little to prove his case. All the heavy lifting is left to cousin Jonathan, who has an uphill climb to prove the invalidity of the will, while Jacob can relax in the courtroom.
But what happens if we persuade the judge to reverse the burden of proof?
Clearly that would make Jacob sit up and take notice. No more relaxing in the courtroom. Jacob now will have to prove that the will is valid, a very difficult job, and that is why if your lawyer persuades a judge to shift the burden of proof to the other party, your chances of winning are exponentially greater.
How can your lawyer persuade the court to shift the burden of proof to the other party? All about that in our next report. ■
Dr. Haim Katz and Adv. Sam Katz are senior partners in a law firm based in Tel Aviv and Jerusalem. Their new book in English, The Complete Guide to Wills and Inheritance in Israel, is published by Israel Legal Publications. They both serve on the Israel Bar Association National Committee for Inheritance Law, which advises the government on law reform relating to inheritance. firstname.lastname@example.org