The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases

Abstract

At the heart of most criminal cases is a dispute about facts. Legal systems have devised a range of procedures for collecting evidence and bringing it to the attention of the factfinder who is to resolve the dispute. At the end of that process, the factfinder holds the metaphorical scales of Justice, the evidence goes into the balance pans, and the scale registers a result. The factfinder is not, however, left simply to weigh the evidence and report which side is heavier. Courts and legislatures have developed a substantial array of legal rules that tinker with the factfinding process, in effect putting a thumb on the scale.

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