For an appellate court, how does &#39;burden of proof&#39; differ from &#39;standard of review&#39;? Preface: This book discusses civil trials, and not criminal trials (whose procedure is more complex, per the author). Source: p 86, Thinking Like a Lawyer: An Introduction to Legal Reasoning (2010, 2 ed) by Kenneth J. Vandevelde The burden of proof governs fact-finding at trial. [1.] As discussed in chapter 2, on appeal, the court will not reevaluate the evidence against the burden of proof. [2.] Rather, the court will evaluate the evidence only against the standard of review. For example, in a civil case, the appellate court will examine a jury verdict only to determine whether it is supported by substantial evidence. If so, the court of appeals will affirm the judgment of the trial court, even if the appellate court itself would not have found the burden of proof to have been met. In other words, a factual finding at trial is usually not disturbed on appeal. I do not understand the differences between the bolded terms (in 1 and 2). How and why can the standard of review differ from burden of proof? I know that appellate courts decide questions of law, and not of fact, unless an error of fact is exceptionally clear. (I know that the required gravity (of such errors of fact) is defined with specific Modifiers, but I do not use them because they differ across jurisdictions.)
In any court, there will be situations where a judge has discretion to make some decision. The judge might have to decide "did X meet the burden of proof", and due to the situation two reasonable and competent judges could come to different conclusions. You couldn't blame either for the decision, even though they would make opposite decisions. On the other hand, a judge might make gross mistakes. The judge might decide "X met the burden of proof" when this is clearly a mistake. That's what the appellate court is interested in. An appellate court checks whether the judge made mistakes that a judge shouldn't make. So in this situation, the appellate court doesn't decide whether X met the burden of proof. The appellate judge decides "did the trial judge make a decision that a trial judge shouldn't have made". An appellate judge might think to himself or herself: "well, I would have decided differently, but this trial judge’s decision was one that a reasonable judge could have made", and if that is what he or she thinks, the original decision will stay intact.
The question should not include France and Germany, and should be limited to common law jurisdictions that are similar to India, because the function of judges differs starkly between adversarial vs. inquisitorial systems. The adversarial model pits two parties against each other, with the judge serving as the decider (of law, and perhaps of fact). The parties can offer witnesses, who can be compelled to respond to questions, and the attorney asking the question gets to control the question asked (subject to a possible objection by the other party, to be ruled on by the judge). The judge can rule on requests (which are not questions) i.e. petitions by either party. Otherwise, the judge sits there more or less mute, soaking up the argumentation being presented. Appellate proceedings are somewhat special in that the justices may address questions to the attorney, in order to better understand the logic of the proffered argument. The burden is on the attorney to make the case. There is no direct burden on the justice to &quot;make a case&quot;. The &quot;court of public opinion&quot; may be relevant in a jurisdiction where the justice is an elected office or is appointed for limited time. Or, the contrary opinion of a higher court may have some influence on a justice's rulings – this is not the case with a Supreme Court. In other words, it would be highly dysfunctional within the adversarial system for a party to be allowed to interrogate a judge. Formal petitions are allowed, as long as you follow proper form.
The case of Sanchez v. Kerry provides evidence as to what standard of proof is required in an analogous case. Petitioner sued the Dept. of State, which makes citizenship determinations (22 CFR 50.2), alleging that he was born in Brownsville TX and submitting a birth certificate in support of the claim. The court found that the Texas certificate was not valid evidence (it was alleged to be filed falsely), and instead a competing Mexican birth certificate was valid. The court concludes as a matter of law that "the plaintiff has the burden of proving, by a preponderance of the evidence, that he was born in the United States", with citations (Bustamante-Barrera, 447 F.3d 388, 394 (5th Cir. 2006); Reyes v. Neely, 264 F.2d 673, 674-75 (5th Cir. 1959); Tijerina v. Brownell, 141 F. Supp. 266, 270 (S.D. Tex. 1956); Patel v. Rice, 403 F. Supp. 2d 560, 562 (N.D. Tex. 2005). The district court lays out the comparative evidence pretty clearly, so that you can see how the courts would probably rule (the case was upheld on appeal). The decision would be based on a totality of evidence, and one would have to go beyond the one fact that distinguishes this case from others. In Sanchez there was substantial counter-evidence. In the present case, other facts would be relevant, such as whether a birth certificate had been filed in a timely manner in some state, whether there was a competing birth certificate from another country. Testimony from competent witnesses would be germane, and could easily devolve into a series of competing technical claims (do people on a plane really know where they are relative to the ground?).
Basically, the idea of incontrovertable evidence is that the evidence points to one and only one truth, and the fact-finder need not doubt it (metaphysical doubt) unless opposition provides material fact that refutes the claim. That is, the defendant may be innocent until proven guilty, but evidence that shows guilt exists on the defendant's part is not false just because it demonstrates this. Thus, if the person making the claim meets the burden of proof, the person in the defense must refute with new evidence that raises doubt about the new fact. One should not assume it is not factual just because it aids in the claim against a defendant. You cannot doubt the evidence just because you doubt it; there must be a reason.
I assume that you don't mean &quot;standing&quot; in the legal sense (i.e. who has a right to sue over something). The question of whether a building has structural integrity is an evidentiary issue. As a result, any competent evidence may be introduced to convince the finder of fact of the issue, and the finder of fact (in a civil matter) will resolve that issue based upon a preponderance of the evidence. There are lots of ways that it could be proven (or disproven): Some instances of lack of structural integrity would be so obvious that a mere authenticated photograph or video clip offered by a lay person would be sufficient to prove the issue. A recent citation from a city inspector would argue strongly for a problem. A recent issuance of a certificate of occupancy would argue strongly for a lack of a problem. Any contractor with a license adequate to do that work would probably be competent to render an opinion. Sometimes an architect would be competent to testify. A licensed or certified building inspect might be competent to testify. Structural integrity is usually the province of someone trained as a civil engineer with a structural engineering speciality. But often evaluating the condition of the soils would be considered a separate speciality to be evaluated by a soils engineer, often as a consultant whose work is used by the structural engineer to form an overall opinion. Except in the case of a lack of structural integrity that it obvious to a lay person that can be proved with a simple photograph or video clip, or can be established with a citation or a certificate of occupancy, anyone presenting a factual opinion regarding the structural integrity of a building would have to be accepted by a court as an expert witness. A court's acceptance of someone as an expert witness is a process that would typically involve presentation of the qualifications of the expert in terms of education, licensure, experience, and history of publications in the area, as well as some defense of the validity of the discipline in which the expert witness is skilled as having a scientific basis and is relevant to the question at hand in this particular case. In a fully litigated case, these issues are typically resolved in pre-trial motion practice and a pre-trial evidentiary hearing in the case of a dispute over whether the area in which the witness has expertise provides is a valid approach, as discipline, to answer the question in a scientifically reliable way. But this broad based attacks on an entire approach to addressing an issue don't usually come up in the case of the standard building and engineering professions. Also, in a fully litigated case, the parties normally disclose an official report of the expert witnesses offered and make them available to be deposed prior to the trial. This requirement is often dispensed with, however, in litigation over preliminary matters. The issue of what kind of expert testimony is competent to prove a disputed issue of fact is determined on a case by case basis. There is not a body of law that spells out in any real specificity what kind of evidence is or is not competent to prove the issue. The general rules of evidence apply and there might be (but probably isn't) case law under the rules of evidence for expert testimony that is on point to resolve your particular issue. More often, there will be pronouncements in variously kinds of professional licensing statutes regarding what someone with a particular qualification is qualified to do, and those are evaluated with respect to a particular tendered witness in a manner that does not preclude someone else who might also have different qualifications that are also relevant to some aspect of the issue from also testifying to the factual issue presented. Of course, that fact that an expert witness meets the minimum threshold to testify in court under the rules of evidence doesn't end the analysis. An expert witness is introduced in order to persuade the judge that the expert's opinion is correct. And, the more highly credentialed a witness is, the more relevant the credentials the witness holds, and the better the witness is at communicating the basis for the opinion of the witness to the judge or jury, the more likely it is that the finder of fact will give weight to the opinion of the witness and rule consistently with the opinion of the witness. So, on one hand, a contractor or inspector would probably be less credible than a structural engineer working with a soils engineer. On the other hand, someone with great technical expertise who isn't a good communicator, or can't deftly respond to an opposing attorney's cross-examination question without falling into a &quot;trap&quot; laid by that attorney, could still be a poor expert witness. Many technically skilled expert witnesses are more timid than necessary in formally giving opinions in court because they are used to discussing ideas in non-adversarial contexts where pointing out the limitations of your conclusions is welcomed and the colleague experts evaluating your opinion know not to give those limitations undue weight.
While it is true that jury instructions are typically less than optimal, it is ideological hyperbole or cynicism to claim that instructions are purposely confusing. The ultimate source of the confusion is that the legal system has to assume (pretend) that it has clear-cut rules that any reasonable person can easily understand and automatically apply. In order to maintain uniformity of the law, there is an externally-defined instruction that a judge may read (rather than giving his personal spin on what "reasonable doubt" means or what the relationship is between "reasonable doubt" and convicting a defendant). Once the relevant body of government (committee of judges and lawyers) has established the apparently correct formula for expressing the applicable legal concept, they don't mess with it, until SCOTUS overturns decisions enough times based on crappy instructions. Legal professionals are trained to carefully scrutinze language so as to achieve a single interpretation of a given clause (never mind the fact that there turn out to be many such interpretations). Since they can apply these interpretive rules, it is assumed that anyone can apply them. But in fact, we know that people don't just use literal semantic principles to reach conclusions – but the law resist pandering to that imperfection in human behavior. There is a huge literature on problems of jury instructions, some of the better of which relies on psycholinguistic experimentation to establish that a given instruction is confusing or gives the wrong result. See for example Solan's "Refocusing the burden of proof.." (and references therein) that addresses the problem of the "beyond a reasonable doubt" instruction, which has the unintended consequence of implying that the defense has an obligation to create a doubt (which is not the case, and allows conviction if there is the weakest imaginable evidence which hasn't been refuted). But who gets to decide what the improved instructions should say? The instructions have to correctly state what the law holds (where "the law" means not just statutes, but the trillions of relevant court decisions and applicable regulations). Thus there is massive inertia, and improved jury instructions will not come about quickly.
Typically an Answer would have two parts. The first part presents the Defendant's side of the story raised in the Petition in an effort to assert that the Petition when viewed in light of the actual facts hasn't demonstrated a right to relief. The second part sets forth "affirmative defenses", most of which are procedural in nature. An affirmative defense raises some set of circumstances not discussed in the Petition that make it appropriate to deny relief even when, but for the defense, if everything in the Petition was true, this would suffice to establish grounds for relief. For example, procedural defenses might include: failure to meet a deadline, failure to give notice to the proper persons, failure to pay a filing fee, failure to include required information (such as a case number or a statement of facts or a signature) in the Petition, or lack of standing to file the Petition on behalf of the child because parental rights or legal guardianship are absent or because the person filing the Petition isn't an adult. The notion is that the Reply, in theory, should limit itself to responding to the newly raised procedural defenses stated in the Answer, or to new documents provided with the Answer, instead of trying to argue and resolve every dispute of fact or credibility issues between the Petition's version of the facts and the Answer's version of the facts. When in doubt, talk about it in the Reply. At worst, it is beyond the scope of what should be included in a Reply and can be ignored by the hearing officer as harmless. And, sometimes the hearing officer will decide that they want to know what is said even if it isn't strictly within the proper scope of a Reply. Certainly provide any documents that weren't previously provided that rebut the claims in the Answer.
An appeal may be made by a plaintiff, prosecutor, defendant or other interested party, so the term 'defendant' is not very useful; the party opposed to the Appellant (and served with the appeal) is usually called the Respondent. A contested appeal just means that the Respondent wishes to be represented at the appeal, presumably to fight it; most appeals are contested, but not all. Unlike a first-order case which may go by default, an uncontested appeal will still have to have some sort of a hearing; you are, after all, saying that a court decision should be set aside, and the Respondent's views are not necessarily relevant. It is, though, fair to say that an uncontested appeal will have a greater chance of success.