Page:Harvard Law Review Volume 4.djvu/76

60 6o HARVARD LAW REVIEW, upon the reus, which will compel him to come forward ; and he again may bring a pressure to bear upon the actor that will call him out. This duty of going forward in response to the pressure of a prima facie case, or of a natural or legal presumption, — a duty belonging to either party, — is, in its nature, the same as th^t which rests upon the actor at the beginning, and which is put as the distinctive test of an actor; it is merely a duty of going forward. This fact was perceived, and it led to a use of the test, which imperceptibly draws the mind away from the notion of an affirmative case, to something quite different. "As, however," says Best,i ''the question of the burden of proof may present itself at any moment during a trial, the test ought, in strict accuracy, to be expressed thus, viz. : Which party would be successful if no evidence at all, or no more evidence, as the case may be, were given } " Now, when this has been said and accepted, all notion of a duty that is limited to the beginning of a case is thrown away, and so every circumstance that discrim- inates the actor and the reus. We are told that we may know him who has the burden of proof by considering whether, at any given inome7tt, a party would lose if the case stopped then and there. But that is a test that may apply to either party, for it points to a situation in which either may find himself, that of having the duty of going forward. In short, the test for the burden of establishing has become a test which is good only for the burden of producing evidence. This duty now comes prominently for- ward, and the other is lost sight of. Meantime, this change is un- observed. And, as we have but one term for the two ideas, it gets used now for one and now for the other ; and, again, in a way which makes it impossible to say what is the meaning ; and so there is no end of confusion. {b.) Another source of ambiguity relates to the "shifting" of the burden of proof. We see that the burden of going forward with evidence shifts from side to side, while the duty of establishing his proposition is always with the acto?^ and never shifts. But as we have only one phrase for the two ideas, we say, alternately, that the burden of proof does and does not shift. And then still another ambiguity. The burden of establishing is some- times called "the burden of proof upon the record," and it is as- sumed that the record shows the full allegations of the parties. 1 Evid. s, 268, and so Bowen, L. J., in Abrath v. N. E. Ry. Co., 11 Q. B. D. 440.