“You have the Burden of Proof” doesn’t work

It is important to lay some definitional groundwork to ensure we are all on the same page. “Burden of Proof” answers the question “Who?” whereas “Standard of Proof” answers the question “How much?” [There is a third and even more important question I will address in a moment.]

In a legal setting, we allocate burden of proof by declaring who must present sufficient evidence to substantiate what is at issue. In a trial, it is the prosecutor or plaintiff. (For hyper-critical lawyers reading this—yes, I know there are some issues the burden “shifts” to the defendants.) In a legal motion—it is the moving party who has the burden. On appeal, it is the Appellant who has the burden.

In a formal debate, it is the person who defends the Affirmative. Although I am not as familiar with scientific presentations, I would imagine it would rest on the person presenting the article or speech. On the person defending their doctoral thesis.

In these situations, it is easy to determine burden of proof. We can point directly at the person and say, “They have the burden of proof.” It answers “Who?” In more informal settings, this gets a bit murkier. Before we move on, though, we need to understand not only the “who?” but the “how?” as well. Just knowing who has the burden is not enough; we need to know what they need to do with it.

“Standard of Proof” answers the question as to how much evidence does the person need to present to sustain their claim. Looking at a gradual scale, from least to most proof necessary:

1. No proof at all. (0%)
2. An iota or scintilla or any proof. (1%)
3. Possible.
4. Probable.
5. More likely than not or preponderance of the evidence (51%)
6. Clear and convincing.
7. Beyond a reasonable doubt.
8. Absolute. (100%)

The percentages are given as an indication. There are no hard-and-fast percentages as to how much greater “probable” is than “possible” or “beyond a reasonable doubt” is than “preponderance of the evidence.” Again, in legal situations, we can easily answer this question. A preliminary examination determines whether it is probable a crime was committed, and probable the accused did it. A personal injury Plaintiff must prove his/her case by preponderance of the evidence. A prosecutor must prove the case beyond a reasonable doubt.

Again, in informal situations, this is not as clearly defined.

The O.J. Simpson case gives an excellent example of the inter-working between burden of proof and standard of proof. In the criminal trial, the prosecutor had the burden of proof; in the civil trial the Plaintiff had the burden of proof. O.J. Simpson never had the burden of proof. So in comparing the two trials—the burden of proof was on the same person. However, in the criminal trial, the prosecutor was unable to meet the standard of proof—“beyond a reasonable doubt” whereas the plaintiff was able to meet the standard of proof—“preponderance of the evidence” that O.J. Simpson killed Nicole Simpson and Ron Goldman.

Same burden of proof. Different standard of proof. Different results. (Don’t get confused by the common vernacular of “She met her burden of proof.” This is technically incorrect, as it should be “She provided sufficient evidence to meet the standard of proof” since burden of proof answers “who?” not “how.” But we commonly use the phrase anyway.)

And so in forums and blogs and chatrooms we banter about these terms when debating on theism or politics or economics of just about anything. These are not formal debates; these are not courtrooms. There are no set determinations as to burden of proof or standard of proof. This is just us discussing.

If you cannot agree on a Standard of Proof with an opposing position, there is no reason to bother discussing Burden of Proof. Answering “who” will not further the conversation one bit, if you cannot agree on the “how.”

Let’s use inerrancy, since it is about the brightest line in the otherwise foggy world of Christian debate. Often times, you will see an inerrantist declare a contradiction is when two writings logically contradict each other. “A is an apple.” “A is not an apple” would be a simplistic example of this. The inerrantist demands those claiming a contradiction within the Bible demonstrate a contradiction using this Standard of Proof. Maybe not quite an absolute Standard of Proof-- No. 8 on the DagoodS Scale above—but pretty close.

Yet when defending proposed resolutions, we hear claims of “it is possible…” “it is possible…” It is possible Peter denied Jesus 52 times, and different gospels records different instances of the many occasions. That Mark and Luke knew of, but didn’t include things Matthew did. That the Gospel of John uses a “possibly” completely different measure of time that is unrecorded, unheard of and unknown in any contemporary history.

Do you see what happened? Do you see how the Standard of Proof changed? To prove a contradiction—it must be absolute. (An 8 on the DagoodS scale.) Yet to prove a resolution—it must only be possible. (A mere 3 on the DagoodS scale.) Do you see why this disagreement makes “burden of Proof” irrelevant?

To the inerrantist, if the burden of proof is on them—the standard of proof is “possible.” If the burden of proof is on those claiming a contradiction—the standard of proof is “absolute.” It is the standard of proof controlling the problem—not the burden of proof.

In the evolution debate, the scientist believes the evidence preponderates to evolution. Or even is clear and convincing. The creationist believes the evidence fails because it is not absolute. Or above “beyond a reasonable doubt.” Determining who has the burden here would be useless, since each would say the other failed, because they are using different standards of proof.

Before we go any further--as this will have bearing on why “burden of proof” doesn’t work—we should look at the third and most important question. Even having the burden of proof, and having the standard of proof—the third question is whether the evidence is sufficient. Burden answers “who?” Standard answers “how much?” We would need a determinate to figure out whether the standard was met. Answering the question “to whom?”

Again, in the legal field this is easy. A judge or jury makes the determination. In a formal debate, there are judges as well. Again, in informal situations such as the Internet, there are no judges. No juries. The same discussions go ‘round and ‘round. Even knowing who has the Burden of Proof, and agreement on the Standard of Proof, there is so rarely agreement the standard was met. Even knowing She has the burden of proof, and agreeing the burden is preponderance of the evidence—who decides she presented evidence that preponderates over the opposition?

Again, making “burden of proof” pretty useless, since we cannot agree (even agreeing on burden and standard) whether it was met. The inerrantist, even agreeing they have the burden, and the standard is “possible resolution” is met by those holding to contradictions saying they didn’t sustain the standard of proof. (Realistically, because the contradictionist is using “preponderance of the evidence” as the standard of proof.)

And this is in a simplistic example. Get into historicity of Jesus, or documents using other writings, or authorship or dating and it gets worse. Then get into events of the Tanakh and find even less distinction and greater difficulties determining standard of proof, burden of proof and determinate.

O.K., now let’s go back to the top of the circle, having seen the bubbling problems festering in the background…who, in these informal Internet discussions, has the burden of proof?

Normally, we fall back on the notion, “The person making the claim has the burden of proof.” If the theist claims there is a God—they have the burden of proof to demonstrate there is a God. If an atheist claims there is no god—they have the burden of proof to demonstrate there is no god. If a person claims Matthew the disciple wrote the Gospel of Matthew—they have the burden of proof. If a person claims Matthew the disciple did not write the Gospel—they have the burden. And so on.

At first blush, this seems reasonable. But upon further inspection, it begins to fragment and fall apart. See, we make claims where we presume the nature of the claim is so obvious, no proof is necessary. We often see the use of “2+2=4” in theistic debates, as analogy or example. But how many people go on to prove 2+2=4? They are making a claim, true? Don’t they have the burden of proof? Yet if we start to apply this persistently, conversation becomes impossible.

“The Disciple Matthew wrote the Gospel of Matthew.”
“Prove it.”

“The first attribution of the Gospel was that it was Matthew’s”
“Prove it.”

“Here is the manuscript.”
“Prove that is the manuscript”

“Here are photos, translations, documents.”
“Prove they made manuscripts.”

See, each evidence to support one’s claim, requires another claim. And that claim requires another claim. Here is one minor point regarding a proof of Matthew and we can almost have infinite retrograde as to “prove it” upon each point used to prove the previous one! Let alone starting to look at other proofs of Matthew writing the Gospel. Or refutations against his writing the Gospel.

If we rigidly applied, “The person who makes the claim has the burden”—the conversation would disintegrate. And we would rightly be hounded from every blog, forum and group for being a troll. We reach a point in reviewing claims, where the premise becomes so basic, we agree the other side no longer has to “prove” the claim. We no longer use terms like burden of proof, standard of proof and so on.

In practice, the notion “The person making the claim has the burden of proof” becomes, “The person making a claim outside our everyday experience and knowledge has the burden of proof” which is actually, “The person making a claim outside MY everyday experience and knowledge has the burden of proof.”

Have you ever seen a theist tell another theist they have the “burden of proof” regarding whether there is a god? Of course not! To them, this is such a basic claim, “burden of proof” is not necessary. Like having a mathematician demand another mathematician prove 2+2=4.

Have you seen a fundamentalist Baptist tell another fundamentalist Baptist they have the “burden of proof” that the 66 books of the Protestant Bible are inspired? Of course not! Again, this is a basic claim. Yet when those two Baptists reach a point of disagreement—such as freewill vs. predestination—all of a sudden we hear cries of “burden of proof”!

The notion, “the person making the claim has the burden of proof” really only comes into play when we reach a claim where we disagree. Yet the only way we know we disagree—is by making competing claims! And by virtue of making claims that compete with other people’s claims—each has just gained a burden of proof…right? So why are we stating the other person has the burden of proof by making a claim, when by virtue of our disagreement, we are making a claim ourselves, thus obtaining the burden of proof by our own methodology!

I see it as a sheer waste of time claiming the opposing position has the burden of proof. I find the notion the Bible is anything more than human writing to be outside my experience and knowledge. A fantastical, unsupported claim. To ME—any person who claims it has God-influence would have the burden of proving it. Of differentiating it from all the other writings out there.

But to Christians, the Bible is a superior, unique, transcendent literature of such impossibility that it could not possibly be merely human made. To THEM—any person claiming it is solely human would have the burden of proving it. It is outside their experience and knowledge.

So what are we going to do—spend hours pointing out to the other how “they” have the burden of proof because “they” have the more extraordinary claim? And then, once that is (not) settled, we are still left with standard of proof, and the determinate?

If you can agree with your opposing position as to the standard of proof (a near impossibility in these discussions) you may find you have gone a long way to negating the issue regarding burden of proof.

On a personal note…

When attorneys negotiate with each other, we very rarely use the concept of who has the burden of proof. We know who does (which helps)—but more importantly we attempt to convince the other attorney on proofs. Evidence. What that jury will likely do on the standard of proof.

If I can convince opposing counsel they will lose, on the evidence, I don’t have to worry about convincing a judge or jury. The attorney is much, MUCH harder to persuade. Due to the nature of the beast, very rarely does opposing counsel concede. We are lawyers—we live to find reasons, excuses and loopholes as to why we will prevail.

My focus, however, is on persuading the other side. If I can present enough argument to convince them—persuading a judge that is neutral to my position will be a cake walk.

I approach my Internet conversations with Christians much the same way. I focus on having enough facts and argument to convince them. I want my position to be presented clear enough and strong enough to cause them to concede my point; how much more would it convince a lurker? Of course, just as in the case of opposing counsel, while this is my goal, I do not expect a Christian to do so. If they did, it would surprise me to no end! It is how I want to present myself more than a need to deconvert—if that makes sense.

I think my position has enough strength in the facts and arguments,--it doesn’t matter who has the burden of proof--it will prevail as obvious. That is why, while I understand the point being made, I don’t think “You have the burden of proof” is ever an effective statement. Maybe they do; maybe they don’t.

Be knowledgeable enough in the field it doesn’t matter.