What Is "Burden of Proof"?

When you are assigned a case to investigate, you should always know which entity in your investigation has the “burden of proof.” The burden of proof dictates which party is responsible for proving whether something did or did not happen.

As an investigator, you should remain impartial to the allegations as the outcome of the investigation really shouldn’t concern us. Sometimes an allegation is made against the company or agency that employs us, but we still have cases that will find them at fault for some grievance or violation. In other cases, our agency might be investigating an external entity that might be at fault.

I have also had several experiences where the investigation found both parties were at fault for certain violations. In one case, a state contractor was found to have violated the contractual agreement, which placed them at fault, while the same investigation found the state agency neglected to adhere to required policies while managing the contract. In these instances, both parties might be found guilty of some impropriety. Being an investigator offers many opportunities to make friends on all sides of an issue, but I digress.

In some cases, the agency or state will have the burden of proof in a case. In other words, it will be their responsibility to prove that a violation occurred and not the responsibility of the person or company being investigated to establish they are innocent.

In other cases, such as a civil lawsuit filed by an ex-employee for retaliation, the person filing the lawsuit will have the burden of proof to show they were fired or forced to resign because of something the employer did or failed to do.

While the burden of proof seems straightforward, I have seen repeated instances of cases escalating up the chain of command with people scrambling to find evidence of their innocence, forgetting that it was up to the other party to prove their case.

Knowing who has the burden of proof can shift the focus and questions you ask during an investigation, so it is an important concept to keep in mind as you plan and execute your investigation. It is also a great reminder that when someone makes a complaint or allegation, they have some responsibility in the matter.

People cannot make invalid complaints that always force the investigative agency to “go fishing” for whatever violations they can find. The allegations need to be specific and have evidence or point to where evidence can be found.

If you are assigned a case and are unsure which party has the burden of proof, meet with your team lead or manager. They should be able to help you decide where to gather the information that is pertinent to the allegation.

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