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Burden of proof
In criminal litigation, the burden of proof is always on the state. The state must prove that the
defendant is guilty. The defendant is assumed to be innocent; the defendant needs to prove nothing. (There
are exceptions. If the defendant wishes to claim that he/she is insane, and therefore not guilty, the defendant
bears the burden of proving his/her insanity. Other exceptions include defendants who claim self-defense
or duress.)
In civil litigation, the burden of proof is initially on the plaintiff. The plaintiff wins if the
preponderance of the evidence favors the plaintiff.
Protections for criminal defendants
The U.S. Constitution: specifies a number of protections:
• No ex post facto law. If an act was lawful when it was performed, the performer can not be
convicted of a crime as a result of a law enacted after the performance.
• prohibition against "unreasonable searches and seizures";
• prohibition of double jeopardy;
• prohibition against compelled self-incrimination;
• the right to a speedy trial;
• the right to the assistance of counsel.
Indigent defendants have the right to an attorney who is paid by the state, even during custodial
questioning by police.
These protections are not available in civil law. The standard in tort cases is what a reasonable and
prudent man would have done, the details of applying this standard to the facts of the case is decided by
the jury, and unknown to the defendant until the end of the trial. In criminal law, police generally must first
obtain a search warrant in a proceeding showing a "neutral and detached" magistrate that there is "probable
cause", before searching or seizing items from a person's house.
In civil law, an attorney
• may request documents or a visit inside a building ;
• may demand information from the opposing party about any matter that is relevant to the
case, provided that information is not privileged
• may properly demand information that would be inadmissible at trial, if such demand
"appears reasonably calculated to lead to the discovery of admissible evidence"
• and may even take the deposition of nonparties in a civil case, and require them to bring
documents with them.
The prohibition against double jeopardy applies only to criminal trials. The corresponding concept in
civil litigation is res judicata: one can have only one trial for claims arising from one transaction or
occurrence.
In a criminal case, the suspect or defendant has the right to remain silent during questioning by
police and prosecuting attorneys. In a criminal case, the defendant may choose to refuse to be a witness,
and the jury may infer nothing from the defendant's choice not to testify. However, in a civil case, the
defendant must be available and cooperative for depositions and testimony as a witness in the trial. In fact,
the defendant in a civil must voluntarily provide his/her opponent with a copy of documents "in the
possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in
the pleadings." Further, the defendant in a civil case must voluntarily provide names of people who are
"likely to have discoverable information relevant to disputed facts alleged with particularity in the
pleadings." In other words, the defendant in a civil case must help his/her opponent collect evidence that
will defeat the defendant. And, at trial, if a party invokes their fifth amendment privilege against self-
incrimination, then the judge will instruct the jury that they may make an adverse inference against the party
who refused to testify. There are often several years between the filing of a complaint in a civil case and the
trial. People who can not pay for an attorney (legal fees for trial preparation often run to more than US$
100,000) are practically unable to obtain access to the courts in civil cases. The one notable exception is in
tort law, where attorneys for plaintiffs often take cases with the possibility of large awards (e.g., more than
US$ 500,000) on a contingency fee: the attorney is paid, for example, 1/3 of any award, but the attorney is
paid nothing for his/her time if plaintiff loses. However, the plaintiff usually pays for expert witnesses,
deposition transcripts, and other expenses. These expenses can be tens of thousands of dollars.
Ignorance of the law is no excuse

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