The burden of proof is a linchpin of litigation, “dictat[ing] who must produce evidence and ultimately persuade the fact-finder on which elements of the case.” For instance, “if the plaintiff has the burden of proof, he loses if no evidence is introduced that X occurred; if the defendant has the burden of proof, he loses unless evidence is introduced that X did not occur.” The purpose of the burden of proof is to “induce parties to provide information, starting usually with plaintiffs.” As has been observed, “The basic function of the burden of proof is to allocate among the litigants the task of gathering and presenting evidence in the case. In an adversary system in which the court lacks independent investigatory powers, the court relies on the parties to inform it about the facts of the case. The burden of proof is the instrument for allocating the job of fact gathering to one or the other party.”

Continue Reading: In re L-A-C-: A Pragmatic Approach to the Burden of Proof and Corroborating Evidence in Asylum Proceedings