Is there any precedent wherein both parties require a burden of proof? My thinking is with respect to very serious issues wherein getting the correct resolution is very important. Usually the burden seems to be on one party or another, but I wonder if there are cases or situations where both parties are burdened with justifying their positions?
Are there cases or situations where both parties are burdened with justifying their positions? england-and-wales Yes, but different standards are applied. One example is the &quot;reverse burden of proof&quot; placed on the defendant in section 1(1) of the Prevention of Crime Act 1953: Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence... The prosecution have to prove &quot;beyond a reasonable doubt&quot; that the article is actually an offensive weapon and that the named defendant possessed it on a particular date and that s/he was in a public place at the time. Whereas the standard of proof for the defendant to show they had lawful authority or a reasonable excuse for having is the, lower, &quot;balance of probabilities&quot;. Similar legislation, for a similar offence, at section 139 of the Criminal Justice Act 1988 states that: (4)It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place. (5)Without prejudice to the generality of subsection (4) above, it shall be a defence for a person charged with an offence under this section to prove that he had the article with him— (a)for use at work; (b)for religious reasons; or (c)as part of any national costume. Which, again, is on the balance of probabilities. See, for example, R v Lambert [2001] UKHL 37: If [a legal burden of proof on an accused] is created the matter in question must be taken as proved against the accused unless he satisfies the jury on a balance of probabilities to the contrary...
The validity of the NDA is not an easy question, but a related one is more clear. A lawyer in the U.S. in most states is not permitted to threaten criminal or administrative action (e.g. reporting someone to immigration or tax officials), to gain advantage in a civil case. You can unilaterally bring criminal charges or take administrative action, but it is deemed to be unethical and against public policy to refrain from bringing criminal charges or taking administration action to gain civil advantages. An NDA of the type described arguably violated the same public policy and might be invalidated as a result. Put another way, there is a privilege to make certain reports to public officials without legal consequences and such an NDA might violate that privilege. Some of these privileges found in what are called "whistle blower" statutes specifically prohibit this kind of agreement as to some specific kinds of illegal conduct, but not others. There isn't a general rule. This said, it is not black and white. For example, a private NDA can't prevent someone from testifying under subpoena, but can prevent someone from voluntarily testifying in the absence of a legal compulsion to do so such as a subpoena. Suppose a woman is sexually assaulted at work, and is given an NDA to sign. Can the company legally require her not to disclose the conduct of an illegal activity? I can imagine this example coming out different ways in different jurisdictions. For example, some states have a legal duty (rarely enforced) that requires people to report felonies, and an NDA in this case would contradict that affirmative legal duty, while others do not. Another source of gray in the analysis is that there is a difference between not reporting a sexual assault that actually happened, and, as part of a larger settlement, executing an affidavit stating under penalty of perjury and under oath that a sexual assault didn't happen. The first is potentially an NDA that is void as a matter of public policy. The other, in principle, is a settlement that the person signing the affidavit can only enter into if it is true. There is nothing, in general, wrong, about requiring someone to confirm that certain representations are true as part of a business transaction or contract and allowing the contract to go forwards only if certain facts are true. The gray gets deeper, because whether a sexual assault happened or not is not always a subjectively black and white clear issue of pure fact. (It is subjective because an affidavit or affirmation is made to the best of the declarant or affiants' knowledge and belief, not as a matter of objective fact.) For example, someone may not have perfect memory of what happened, or there could be doubt over the question of whether the perpetrators acted recklessly (the Model Penal Code intent requirement for sexual assault) or merely with criminal negligence (which would not be sexual assault under the Model Penal Code). A statement made under oath about whether a sexual assault happened to the best of your knowledge, thus, might be a mixture of factual issues (A penetrated B at a certain date and time) and legal or not perfectly factually known ones (A acted with X intent regarding consent during that act). So, in a case where there was some room to argue either way about how to characterize what happened and about what actually did happen, there might be some room for a settling party to make a non-perjured statement consistent with the settlement and then to agree not to a true NDA, but instead to not make statements which, if the affidavit is true, would be false. In a plea bargain in a criminal case, one can plead "no contest" without agreeing that the crime factually happened, but that isn't really possibly in the context of an affidavit about what really happened, with an NDA limited to not disclosing the incident since it was already agreed as a matter of sworn fact that there is nothing to disclose that rises the level of a crime.
The FCC addresses this. As a general matter, the standard of proof is the “preponderance of the evidence” standard. See, e.g., Application of Ameritech Michigan Pursuant to Section 271 of the Communications Act of 1934, as amended, to provide In-Region InterLATA Services in Michigan, Memorandum Opinion and Order, 12 FCC Rcd 20543, 20568-69, paras. 45-46, n.87 (1997); Bender v. Clark, 744 F.2d 1424, 1429 (10th Cir. 1984) (“The traditional standard required in a civil or administrative proceeding is proof by a preponderance of the evidence [and t]he traditional preponderance standard must be applied unless the type of case and the sanctions or hardship imposed require a higher standard.”) Reasonable doubt is the standard for criminal prosecutions, which are not included in 47 CFR Part 97.
There is no general legal obligations be truthful Such an obligation only arises where specifically called out by law or where there is a relationship of trust between the parties, e.g. they are negotiating a contract, they have a doctor-patient relationship etc. In any event, the President has legal immunity for actions performed as President. Presidents answer for their misdeeds at the ballot box, not the courthouse.
Given that both parties have committed criminal offenses (the 'bad actor' is attempting fraud and the 'victim' has committed unauthorized access to a computer system), no court would hear a civil case between these parties. As a matter of public policy, criminals do not owe a duty of care to each other so no one can win this case.
If Doe and Smith agree with your position that the church will be the arbitrator, they should go unto the church and get their problem resolved, which is in itself significant. If one of them rejects that interpretation, it is possible that one of them will sue in regular court to get the matter resolved. If neither of them accepts that interpretation, that clause will not be part of the legal argument that the court decides on. The court will only touch on this passage if exactly one of the parties agrees with the passage and makes it part of his argument. Then that person will have the burden of arguing that a certain outcome is mandated by the agreement – for example &quot;this is a binding arbitration clause, you must let The Church decide&quot;. The courts will have to consider the evidence that this is indeed what the parties agreed to. It then depends on the evidence that the two sides offer for their positions, as to their respective understandings of the contract language. A preponderance of evidence could favor the interpretation that you offer, but that is a fact-intensive question of Biblical interpretation, and not a legal one.
Finding Certainty There is only one way for certain: Do the supposedly unlawful thing Get sued (civil) or prosecuted (criminal) Go to court - if you win it wan't illegal If you lose, appeal to the next appellate court in the chain In one of those courts refuses to hear your appeal - it was illegal Repeat as necessary until you reach the Supreme Court - if you win it wan't illegal If you lose or the Supreme Court refuses to hear your appeal - it was illegal. Of course, this whole cycle will take a few years and quite a lot of money. Not certain but persuasive Consult a lawyer: their area of expertise is knowing what the law is and how it will likely apply to your circumstances. Of course, they can be wrong about this because - see above. Why is this so hard? Common law jurisdictions, of which Florida is an example, do not have a "Code of Laws" where you can look things up and see if they are legal or illegal. The Common Law in Florida is partially enacted law (by the US, Florida, County, City and finally your housing corporation) and partially unenacted law (decisions made by courts about both the enacted and unenacted law). In fact, enacted law is usually quite ambiguous until it has a body of unenacted (or case) law that surrounds it and provides guidance on how the courts will interpret it. Part of a lawyers skill is knowing (within their area of expertise) what the relevant case and statute law is with respect to the specific facts of the case, or knowing how to research them. Publish and be damned! You can always take the Duke of Wellingtons approach. In common law jurisdictions, everything is legal unless there is a law (enacted or unenacted) that makes it otherwise. If you do not believe that the action you wish to take is illegal then advise the other party that you will give them 24 hours to come back with a court injunction to prohibit it, otherwise you will proceed. You can't call a bluff harder than this!
As a comment by @DavidSchwartz notes, this is not wrong. Questions of law but not fact are allowed. It is worth noting that the line drawn is arbitrary. In Colorado, where I practice, jurors issue written questions (pre-reviewed by the judge and counsel for all parties before being presented) to witnesses at the close of the testimony of each witness called by a party to testify. This is very helpful to counsel, as it provides indirect evidence of whether the jury understands what they are being told, and often juries will directly ask questions that for tactical reasons, both parties have refrained from asking that go to the heart of the matter. It also frequently clarifies misunderstandings that trained legal professionals assumed were not made about terminology. This is more problematic in criminal trials, where jury questions could provide evidence pushing a case over the threshold of proof needed to prove beyond a reasonable doubt that the prosecution failed to provide, than in civil cases with a preponderance of the evidence standard. Also, as a matter of reality, when jurors ask questions, counsel often loathe to object even when they have valid grounds to do so, for fear of offending the decision-maker, unless it is really critical to keep certain information away from the jury.