BURDEN OF PROOF: PART I

I was at a recent hearing where the plaintiff was trying to expose her ex husband's financial fraud.  This is extremely difficult to do because family court will do everything it can to obstruct any woman who attempts to hold her ex husband accountable financially. 

 

Unfortunately, many cheating, lying exes get some additional help with this since the banks and brokerage companies hold strictly confidential the majority of financial records which could prove such fraud, and the only way to get your hands on those documents is through discovery ordered by the Court. 

 

However, post judgment, the likelihood that you will obtain such discovery through a court order is mostly nil. 

 

Why? 

 

Because the Courts prefer to protect and shelter evil doers, particularly your slime bag ex.  So most judges will quietly stick their fingers on the scale of justice and decide against any kind of discovery when you go to family court with a request.

 

If you want to swim against the tide and see if you can get discovery nonetheless, you would have to meet the burden of proof standard established by Oneglia v. Oneglia 14 Conn. App. 267 - 1988, "proof beyond a mere suspicion" or probable cause. Supposedly, if you meet that burden of proof, you will then be able to move forward with discovery.

 

Needless to say, my friend lost. 

 

Again, not because she didn't have proof beyond a mere suspicion, but just to say that no matter what she did, the Court was going to rule against her because they don't like reopening cases post-judgment, particularly for a woman.  

 

So what does burden of proof actually mean? 

 

We've heard these terms bandied about on TV--"probable cause" to search a private home,  and "beyond a reasonable doubt" to prove someone guilty of murder.  We've heard "Innocent until proven guilty."  But what does that all mean? 

 

The Burden of proof represents the extent to which a plaintiff or the government has to prove its case in order to prevail in a legal action. 

 

There are three types of burdens: 

 

There is the tactical burden of proof, or the persuasive burden of proof which applies to how each party in a case argues regarding what the Court or a jury should infer from the proof they have before them. 

 

There is also the evidential burden of proof, where each side presents documentation to prove each of their positions correct. 

 

Then, finally, there is the legal burden of proof which is what I am addressing in this article. 

 

The legal burden of proof represents the obligation the plaintiff or the government has to prove the elements of the case in order to win the lawsuit.  By elements of the case what I mean is that any legal charge includes more than one component.  The one bringing the charge must show that each component exists, and also must show the extent to which each component exists such that it meets the requirements of the law.  One such component might be a motivational component in a crime, such as intentionality.

 

The burden of proof ordinarily rests upon the person or government entity that makes the charges, while the defendant proceeds with the assumption that he is innocent. 

 

The latin maxim associated with these respective positions is as follows:  semper necessitas probandi incumbit ei qui agit, which means, "the necessity of proof always lies with the person who lays charges." 

 

Depending on the kind of case, the plaintiff or the prosecution will have to achieve a specific level of proof in connection to the elements of the case in order to win.  These levels can be as low as the Oneglia standard of "beyond a mere suspicion" or "probable cause" all the way up to the highest level "Beyond a reasonable doubt" which we are familiar with in criminal cases. 

 

It is like that old adage of the "straw that breaks the camel's back."  The plaintiff, or the government, has to throw down as many straws as it takes to reach the breaking point where disbelief dissolves into belief.  There are demarcations for each standard, or for the number of straws that you have to throw down in order to meet those standards.  

 

While this should be a standard measured in a fairly mathematical way, and some articles on this subject, in fact, do measure each standard by percentage, in real practice, we who experience the arbitrary nature of adjudication in family court know that these standards are applied fairly randomly and arbitrarily.  More on this in Part II.

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http://divorceinconnecticut.blogspot.com/2013/08/burden-of-proof-part-ii.html