Burden of Proof

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“Burden of proof” is the need for people who make claims in a lawsuit to prove their claims. Normally, people are in court because they see “the facts” differently. Each side will have to try to prove to the judge or jury that their understanding of the facts is correct.

Types of Burden

There are generally three types of burdens:

  • A legal burden is an obligation a single party has during the whole lawsuit. If the party can convince the judge or the jury that is or her proof is correct, the party “carrying the burden” will win the lawsuit.
    • For example, in a criminal case, the prosecutor has the burden to prove all elements of the offense (generally beyond a reasonable doubt.)
  • An evidentiary burden is an obligation that shifts between parties over the course of the hearing or trial. For example, one party may submit evidence that creates a burden on the opposing party to present different evidence to refute the presumption.
  • A tactical burden is an obligation similar to an evidentiary burden. Presented with certain evidence, the Court has the discretion to infer a fact from it unless the opposing party can present evidence to the contrary.

Standards of Proof

The standard of proof is the level of proof required in a lawsuit to convince the court that something is true. The degree of proof required depends on the type of case being tried.

The three broad levels of proof used in the courtroom are:

  • Preponderance of evidence. Evidence that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. This is the burden of proof in some civil trials.
  • Clear and convincing evidence. Evidence indicating that the thing to be proved is highly probable or reasonably certain. This is a higher burden than preponderance of the evidence, but less than evidence beyond a reasonable doubt.
  • Beyond a reasonable doubt. This is the standard used by a jury to determine whether a criminal defendant is guilty. In deciding whether guilt has been proved beyond a reasonable doubt, the jury must begin with the presumption that the defendant is innocent.

Note: There is also something called the “burden of production.” This is the duty of each side in a lawsuit to introduce enough evidence to support their claims that the judge or jury can made a decision based on facts. If one side does not produce any evidence to support their case, they will usually lose the lawsuit.




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