The two burdens of proof in the legal system are the burden of production and the burden of persuasion. The burden of production is the obligation of a party to introduce enough evidence of sufficient quality to support their position on an issue. The burden of persuasion is the obligation of a party to convince the trier of fact (judge or jury) to a requisite standard, such as beyond reasonable doubt, of the truth of a particular issue.
These burdens are important in both criminal and civil litigation. In criminal cases, the prosecution bears the burden of proving each element of the alleged crime beyond a reasonable doubt. In civil cases, the plaintiff bears the burden of proving their case by a preponderance of the evidence. Understanding the nuances between these two burdens is key for litigators.
Burden of Production
The burden of production refers to a party’s obligation to introduce enough evidence of sufficient quality to support their position on an issue. This burden applies to both plaintiffs and defendants in civil litigation and to both prosecutors and defendants in criminal cases.
The party bearing the burden must introduce admissible evidence that would allow a reasonable trier of fact to find in their favor regarding the issue. If the party does not meet this evidentiary threshold, the opposing party can file a motion for directed verdict or summary judgment. The judge will grant this motion if the evidence is insufficient to sustain a verdict.
For example, in a criminal case the prosecution bears the burden of production to introduce enough incriminating evidence on each element of the alleged crime. If the prosecution fails to produce sufficient evidence on even one element, the judge must direct a verdict acquitting the defendant on that charge.
Similarly, in a civil case the plaintiff bears the burden of production on each element of their legal claim. If the plaintiff fails to produce adequate evidence in support, the defendant can move for summary judgment dismissing the claim.
The burden of production therefore sets the minimum evidentiary threshold each party must meet to sustain their position and avoid dismissal before trial. The party bearing the burden must put forth actual evidence, not just unsupported allegations. Circumstantial evidence may suffice so long as it supports a reasonable inference in the party’s favor.
Burden of Persuasion
While the burden of production sets the minimum quality and quantity of proof needed, the burden of persuasion establishes the degree of certainty by which a party must convince the trier of fact on an issue. In other words, the burden of persuasion sets the standard that a party’s evidence must satisfy to warrant a favorable finding.
There are three main standards of proof that comprise the burden of persuasion:
Preponderance of the Evidence
Preponderance of the evidence is the default burden of persuasion in civil litigation. This standard is satisfied if the evidence demonstrates it is more likely than not that the fact at issue is true. This is sometimes quantified as anything greater than 50% probability. If the plaintiff’s and defendant’s evidence are equally balanced at 50%, the party bearing the burden loses.
For example, in a civil negligence case the plaintiff bears the burden of proving each element – duty, breach, causation, damages – by a preponderance of the evidence. If the plaintiff fails to convince the jury that any one element is more likely true than not, the defendant prevails.
Clear and Convincing Evidence
Clear and convincing evidence is an intermediate standard between preponderance and reasonable doubt. To meet this burden, the evidence must establish that the truth of the asserted fact is highly probable or reasonably certain. This is a higher standard than preponderance, but not to the level of beyond reasonable doubt required in criminal cases.
States apply the clear and convincing standard to certain civil cases involving matters of important public policy, such as involuntary commitment proceedings or termination of parental rights. The heightened standard reflects the significance of the rights at stake in these cases.
Beyond a Reasonable Doubt
Beyond a reasonable doubt is the highest standard of proofrequired exclusively in criminal cases. It is defined as proof that leaves no reasonable doubt in the mind of a reasonable person that the defendant is guilty. This does not mean proof with absolute certainty, since that is rarely attainable. Rather, it means proof that is so convincing that a reasonable person would rely and act upon it without hesitation in their most important personal affairs.
The high reasonable doubt standard reflects the gravity of restricting a defendant’s liberty through criminal conviction and punishment. This standard puts the burden heavily on the prosecution to produce compelling evidence of guilt. The defendant is presumed innocent and does not need to testify or produce any evidence unless the prosecution first makes its case beyond a reasonable doubt.
Burden Shifting Frameworks
While the plaintiff or prosecutor generally retains both burdens of proof, the law provides burden shifting frameworks regarding certain issues where policy dictates the burdens should shift between the parties.
In civil rights discrimination cases, for example, the plaintiff bears the initial burden of production to establish a prima facie case of discrimination. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. If the employer meets its burden, the burden shifts back requiring the plaintiff to prove the employer’s reason is pretext for unlawful discrimination.
Burden shifting also occurs on certain affirmative defenses in both civil and criminal cases. The defendant bears the initial burden of production to place the defense at issue. Once met, the burden shifts to the plaintiff or prosecutor to disprove the defense. Self-defense is one example in criminal law, and assumption of risk in tort law.
Why are Burdens of Proof Important?
Burdens of proof play a vital gatekeeping role in the legal system. Allocating these burdens between parties sets the “playing field” by determining when the judge or jury can render judgment. Imposing burdens also serves public policy functions.
In criminal law, the beyond reasonable doubt standard and presumption of innocence uphold the principle that convicting an innocent person is far worse than acquitting a guilty one. In civil law, preponderance allocates the risk between plaintiffs and defendants based on substantive legal policy and fairness. Clear and convincing proof applies to protect particularly important civil liberties.
Burdens of proof also aim to streamline the litigation process. Without required standards of proof, parties could go to trial based on frivolous claims or extremely weak evidence. Burdens of production weed out cases not even minimally supported. Burdens of persuasion prevent findings based on guesswork by requiring sufficient certainty.
Correctly understanding the nuances between burdens of production and persuasion, and the varying standards of proof, is imperative for lawyers to competently litigate cases and argue before the court. Law students study burdens rigorously to master their role guiding procedural and substantive outcomes. For the justice system to function fairly, burdens must be properly defined and applied.
Examples Applying Burdens of Proof
Hypothetical legal cases help illustrate how burdens of proof apply practically:
Criminal Homicide Case
Charles is on trial for murdering Victor.
Burden of Production – The prosecution bears the burden of producing credible evidence to establish: (1) Victor’s death was a homicide, (2) caused by Charles’s criminal actions. Autopsy results concluding Victor died from gunshot wounds, along with a witness testifying he saw Charles shoot Victor, likely suffices.
Burden of Persuasion – The prosecution must prove elements of homicide and Charles’s guilt beyond a reasonable doubt. Even with strong evidence, if the jury has reasonable doubt on Charles’s intent or identity as the shooter, they must acquit.
Civil Discrimination Case
Paula sues her former employer, alleging sex discrimination for denying her promotion to manager.
Burden of Production – Paula bears the burden of producing evidence to establish a prima facie case of discrimination, such as her qualifications for promotion, and promotion of a male with similar qualifications.
Burden Shifting – If Paula meets her initial burden, the burden shifts to the employer to produce evidence of a legitimate rationale for not promoting Paula.
Burden of Persuasion – If the employer provides a nondiscriminatory explanation, the burden shifts back to Paula to prove the explanation is pretext for sex discrimination. Paula must convince the jury of pretext by a preponderance of the evidence.
Affirmative Defense Case
David is criminally charged with theft. He raises the affirmative defense of duress, alleging he only stole the goods under threat of physical harm.
Burden of Production – David bears the initial burden of producing sufficient evidence that he was unlawfully coerced into committing the theft through duress.
Burden Shifting – If David meets his burden of production, the burden shifts to the prosecution to produce evidence that David’s duress defense is false or should not apply.
Burden of Persuasion – The prosecution retains the ultimate burden of persuading the jury beyond a reasonable doubt that the affirmative defense does not defeat David’s culpability for the theft.
Conclusion
In summary, burdens of proof are divided into the burden of production and burden of persuasion. The burden of production sets the minimum evidentiary threshold parties must meet to sustain their position. The burden of persuasion establishes the degree of certainty by which a party’s evidence must convince the fact finder on an issue. Criminal cases impose the highest standard – beyond a reasonable doubt – while civil cases typically use the preponderance standard. Burdens may shift between parties at different stages of litigation depending on procedural frameworks and substantive law principles. Understanding burdens of proof is key for lawyers to properly litigate cases within the constraints and goals of the justice system.