Burden of proof

At the beginning of his 1990 legal novel, “The Burden of Proof,”

Scott Turow quotes an opinion of the United States Supreme Court and

Sigmund Freud; even interdisciplinary approaches to this question say

that clear-cut proof of one’s innocence or guilt is found only in

fiction. Experience says that all of us are judged every day. We are

judged by the face that looks back at us from the mirror. We are

judged by the faces of the people we love and by the faces and lives

of our children and by our dreams. Each day finds us at a crossroads,

and we are judged as much by the roads we have not taken as by the

roads we have.

Christianity proclaims that at some unforeseeable time in the

future there will come a day on which all our days and all the

judgments upon us and all our judgments upon each other will

themselves be judged. The judge will be Christ. About this, Frederick

Buechner writes, “Romantic love is blind to everything except what is

lovable and lovely, but Christ’s love sees us with terrible clarity

and sees us whole. Christ’s love so wishes our joy that it is

ruthless against everything in us that diminishes our joy. The worst

sentence love can pass is that we behold the suffering, which love

has incurred for our sake, and that is also our acquittal. The

justice and mercy of the judge are ultimately one.”

In other words, the one who judges us most finally and clearly

will be the one who loves us most fully and dearly.

THE VERY REV. CANON PETER D. HAYNES

St. Michael & All Angels Episcopal Parish Church

Corona del Mar

Jewish jurisprudence has minimal confidence in the validity of

circumstantial evidence. In Western society, it happens time and

again that an innocent man is convicted because of an accumulation of

circumstantial evidence, notwithstanding the adage “better that 1000

guilty men should go free than that one innocent man should be

punished unjustly.”

When the testimony of opposing parties cannot be established as

factual, a modern judge or jury would weigh the credibility of the

witnesses and the probability of their stories, and then decide

between them accordingly.

The authors of Jewish law did not trust themselves or their

successors with this discretion. They held that as someone was

evidently lying, and as they could not decide which of them it was,

the plaintiff’s demand should be defeated. The burden of proof lies

on the one who brings the charge and Jewish courts saw it as their

duty to decide the effect of testimony as a question of law, not as

one of the greatest probability.

RABBI MARK MILLER

Temple Bat Yahm

Newport Beach