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Burden of proof?

中国日报网 2013-07-09 10:46


Reader question:

Please explain “burden of proof” in this statement: Those who promote a theory are, in the scientific method, bound by the burden of proof.

My comments:

To paraphrase, people who put out a theory have to prove that theory to be true scientifically.

In other words, it’s not enough for someone to claim something as such and so and just leave it there – assuming that others will all believe it as such and so. They have, instead, to go through all the trouble to prove to others that the theory is true, using the scientific method, that is, via vigorous tests and trials.

And all that trouble one has to go through is why it is called a “burden”.

“Burden” suggests that it’s a heavy piece of work, one that’s very difficult of accomplishment. Lifting 10 kilos of water in a jar up to the 5th floor, for example, might be OK for you if you’re ask to do it just once. But lifting 20 kilos all the way up to the 5th floor might be a burden, especially if you are asked to do it five times a day, seven days a week.

At least that’ll be burdensome.

Anyways, burden suggests it’s a difficult task. And if you’re bound by the burden of proof, you have to do it. Bound, as in duty bound. No escape. Without shirk. You have to do it.

The phrase “burden of proof” is originally a legal term, point to the fact that it is the duty of the prosecution to prove what it claims is true. If you accuse someone of stealing government money, for instance, you have to prove it in court via evidence. Not only prove it, but prove it, to use another legal jargon, beyond any reasonable doubt.

The accused, on the other hand, is not required to do any of the work – of proving that he’s innocent. He’s presumed innocent, until proven guilty. That’s the basic tenet of the modern legal system, especially in the West where the criminal court is independent of administrative government.

This helps, obviously, to ensure that people do not go around making groundless claims left, right and center.

It might be the case if they were not “bound by the burden of proof”.

In the courtroom as well as in the realm of science, necessarily, it makes sense.

Alright, here are media examples of “burden of proof”:

My comments:

1. Education institutions, like any other large employers, are likely, at some stage, to face discrimination claims from employees or former employees, and managers may be called upon to attend employment tribunal hearings. In the majority of discrimination cases considered by tribunals, there will be no clear-cut evidence that the alleged discrimination has taken place. Instead, there will typically be conflicting evidence reflecting the very different perceptions of those involved. This was recognised by the Court of Appeal in the leading judgment on this issue, which acknowledged that: “It is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’.”

As a result of this absence of clear-cut evidence, the test for establishing discrimination (ie, the “burden of proof”) will be central to any discrimination case.

A two-stage test

In order to address the evidential difficulties in discrimination cases, the tribunals have developed a two-stage test for proving discrimination. First, the claimant (usually the employee or former employee) must establish a case that, on its face, amounts to discrimination (a “prima facie” case). If he is able to do so, the burden of proof will then shift to the respondent (in most cases, the employer), who will have to show that it did not discriminate against the claimant.

At the first stage of this process, the tribunal will consider what inferences it could draw from the evidence presented and whether this could amount to discrimination. Such inferences may be drawn from, for example, an evasive or equivocal reply to a discrimination questionnaire, the breach of relevant code of practice or evidence from the employer’s equal-opportunities monitoring data. If the burden does move to the respondent then it must prove, on the balance of probabilities, that the treatment was “in no sense whatsoever” on the grounds of sex, race, age and so on. A bare explanation for the allegedly discriminatory conduct will not be enough; it must be backed by evidence.

- Burden of proof in discrimination cases, TimesHigherEducation.co.uk, February 18, 2009.

2. The debate may largely be drawn along political lines, but the human role in climate change remains one of the most controversial questions in 21st century science. Writing in WIREs Climate Change Dr Kevin Trenberth, from the National Center for Atmospheric Research, argues that the evidence for anthropogenic climate change is now so clear that the burden of proof should lie with research which seeks to disprove the human role. In response to Trenberth’s argument a second review, by Dr Judith Curry, focuses on the concept of a ‘null hypothesis’ the default position which is taken when research is carried out. Currently the null hypothesis for climate change attribution research is that humans have no influence.

“Humans are changing our climate. There is no doubt whatsoever,” said Trenberth. “Questions remain as to the extent of our collective contribution, but it is clear that the effects are not small and have emerged from the noise of natural variability. So why does the science community continue to do attribution studies and assume that humans have no influence as a null hypothesis?”

To show precedent for his position Trenberth cites the 2007 report by the Intergovernmental Panel on Climate Change which states that global warming is “unequivocal,” and is “very likely” due to human activities.

Trenberth also focused on climate attribution studies which claim the lack of a human component, and suggested that the assumptions distort results in the direction of finding no human influence, resulting in misleading statements about the causes of climate change that can serve to grossly underestimate the role of humans in climate events.

“Scientists must challenge misconceptions in the difference between weather and climate while attribution studies must include a human component,” concluded Trenberth. “The question should no longer be is there a human component, but what is it?”

- The human cause of climate change: Where does the burden of proof lie? EScienceNews.com, November 3, 2011.

3. It was Liz MacKean – the BBC reporter on the Newsnight Jimmy Savile investigation that never aired – who said that the broadcaster “should trust its journalists”. Except, of course, nobody seems to trust reporters very much, BBC bosses included – with research from Ipsos Mori showing that the proportion of the public who trust in journalists has averaged about 17% since it first began measuring such things in 1983. Recent events – well, phone hacking – might have further dented the public perceptions - but it is not just the behaviour of a minority that has led us to this point.

David Walsh, the Sunday Times writer who did his best to expose Lance Armstrong’s drug-taking, found himself unable to defend his journalism in the British courts back in 2005. The admitted drug-taker was able to avail himself of the best legal advice (Schillings in this case) and the Sunday Times could not prove its case. That’s partly because the burden of proof in libel rests on the publisher of the allegations – and partly because the evidence on which Walsh relied was not conclusive. Walsh had information from a masseuse, Emma O’Reilly, who told him about the disposal of “empty syringes” – the type of evidence that high court judges concluded was capable only of “imputing either ‘guilt’ (in the sense of having taken such drugs) or, at the least, that there were reasonable grounds to suspect him of taking drugs”.

With the burden of proof on the journalist Walsh would have needed a direct confession (now available on Oprah Winfrey’s network) or covert filming to prove his story in court. So because the claim could not be backed up, and because the evidence offered implied guilt, the Sunday Times folded, paying £1m in damages and costs to Armstrong. The paper even had to state in court that it “never intended to accuse him of being guilty of taking any performance-enhancing drugs”.

Yet, of course, we know Walsh turned out to be right. It was just that the judges didn’t believe him, because the burden of proof had been raised so high. A similar point might have been made about Jimmy Savile too – the man we now believe to be a serial rapist and sexual abuser also used lawyers to stop journalists telling stories about him: according to his son, the late George Carman, the legendary silk, warned off the Sunday Mirror from publishing a story in 1994 about alleged abuse by Savile at Duncroft Approved School for troubled girls in Staines, Surrey. Any newspaper editor would have known that relying on 20-year-old evidence from once-vulnerable women could easily have been demolished in court; and once again the newspaper would have been shown to be “proven wrong” when, in fact, the women’s story and the journalist’s instincts were right.

Nor should one just blame the libel laws. Corporate pressures play their own part. There are now 22 Sun journalists who have been arrested as part of Operation Elveden, investigating corrupt payments to public officials. At the Sun from its inception, paying for news was the way the newsroom did business: the public were invited to sell stories by ringing the newsdesk. It is one thing to suborn a public official – but arguably quite another to agree a £300 tip fee to a soldier or prison officer.

Nobody warned journalists at the time that what was seen as “doing one’s job” might be illegal. Yet now – with evidence handed over after the phone-hacking crisis – some reporters wait months on bail before the police decide what to do about the payments made.

Of course, there’s no doubt that journalists make many mistakes too. But when they’re caught in the crossfire of the law and flawed institutions, there are other reasons why trust in the trade is so low.

- Why the burden of proof weighs heavily on journalists, Guardian.co.uk, January 20, 2013.

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About the author:

Zhang Xin(张欣) has been with China Daily since 1988, when he graduated from Beijing Foreign Studies University. Write him at: zhangxin@chinadaily.com.cn, or raise a question for potential use in a future column.




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