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4) To fail to react to a civil tort judgment could be seen as an admission that we do not care about the well-being of our customers.
Therefore, according to the general principle that the party to a legal dispute in the best position to offer evidence on any given subject should have the obligation of producing it in order to ensure accurate findings of fact by the trier-of-fact, the defendant should have the burden in both criminal and civil tort proceedings of producing evidence as to his state of mind and as to any excuse defenses which raise the issue of his culpability.
A Proposal for Reallocating Burdens and Standards of Proof in and Civil Tort Cases
This proposal attempts to lighten the burden of prosecutors and plaintiffs in proving a prima facie case in criminal and civil tort cases, while imposing on the defendant the duty of producing evidence regarding the defendant's mental state at the time of the incident, mens rea, intent, recklessness, or negligence and regarding any excuse or affirmative defense he may have, once the prosecutor/plaintiff has made its prima facie case.
(3) The standard of proof in both criminal and civil tort cases should be CACE on the part of the prosecutor/plaintiff as to all of the elements of the crime or tort; and it should be BAPOTE on the part of the defendant for those affirmative and excuse defenses which do not involve the issue of culpability, but rather some other policy goal (e.g., the defense of entrapment, which involves the policy goal of preventing outrageous police overreach).
In a civil tort case the fact finder not only decides the issue of liability but also sets the amount of the award, as is done at the present time.
The second paragraph proposes to shift the burden of production to the defendant in both criminal and civil tort cases to supply evidence and proof regarding any exonerating or mitigating facts which would remove the permissive "inference of guilt or of liability." This permissive inference is allowed when it is reasonable to infer the fact from the circumstances presented in the government or plaintiff's case and when the defendant fails to provide any evidence to support his defenses.
Civil tort lawsuits for international human rights violations have been largely confined to the United States.(118) Where filed against defendants who are only temporarily in the forum country, as in Karadzic, such cases are possible only in a system which allows personal jurisdiction based on transient physical presence.(119) In the European system, for example, the widely-ratified Brussels Convention on Jurisdiction (Brussels Convention)(120) requires a connection between the forum state and the claim and generally rejects transient jurisdiction.(121) However, where the defendant is living in the forum state, as in many of the ATCA cases litigated in the United States,(122) personal jurisdiction would generally be permissible.(123)
In order to justify extraterritorial jurisdiction, international law requires some relationship between the forum State and the claim.(124) This relationship is satisfied for international crimes through the concept of universal jurisdiction, which allows any State to assert jurisdiction over certain crimes of international dimension.(125) As to jurisdiction over civil tort suits, the relationship is also satisfied by the international community's shared interest in holding accountable those who violate international human rights norms.(126)
Some argue that universal jurisdiction applies in full to civil remedies, which would obligate States to permit victims of human rights abuses to litigate civil tort cases.
The emerging principles establishing the rights of victims of human rights violations, coupled with the ancient concept of universal jurisdiction, may, therefore, lead to development of a principle which obligates States to offer victims the option of seeking civil tort remedies.
Far more than a stand-in for criminal law prosecutions, civil tort litigation is a complementary procedure, which allows victims of human rights abuses to initiate and control private actions.