Killingham v. District of Columbia Rental Housing Commission, 810 A.2d 925 (2002)

The effect of a misallocation of the burden depends not only on the weight of the evidence, but also on the nature of the burden of proof that has been misallocat-ed. “In the usual civil case ... where the standard of proof is a preponderance of the evidence, a misallocation will likely be consequential only where the evidence approaches equipoise, i.e., ‘[w]here proven facts give equal support to each of two inconsistent inferences.’ ” District of Columbia v. Kora & Williams Corp., 743 A.2d 682, 693 (D.C.1999) (alteration in original) (quoting Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 339, 53 S.Ct. 391, 77 L.Ed. 819 (1933)). Where the burden of proof is more onerous, however, a misallocation may surely be “consequential” and perhaps determinative even where the evidence is significantly out of equipoise. To take an extreme example, if *928the court were to instruct the jury in a criminal case that the defendant is required to prove his innocence beyond a reasonable doubt, then, and putting aside applicable constitutional requirements, see Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993),1 the defendant might be found guilty even if a preponderance of the evidence pointed to his innocence.