Sections within this essay:
A burden of proof refers to the responsibility each party to a controversy bears in proving its claim, defense (see below), or objection. It refers to that body of law dealing with evidence presented in a formal adjudication of a controversy which tends to prove or disprove a disputed fact. In civil cases, a general rule is that the burden of proof rests with the party advancing the matter to be proved. Courts apply three different standards in determining whether a party has met its burden of proof, discussed below.
In application, a party to a controversy must convince the adjudicative entity (court, jury, arbitrator, administrative law judge) to rule in its favor. It does this by presenting evidence that it believes supports its position. The party typically presents evidence to support each element of the claim or defense it proffers. How much weight and credibility to afford each item of evidence is up to the adjudicative entity before which the evidence is presented.
In most civil cases/lawsuits as well as administrative hearings, a party must prove its claim or position by a preponderance, defined as a superiority in weight, force, importance, etc. In legal terms, a preponderance of evidence means that a party has shown that its version of facts, causes, damages, or fault is more likely than not the correct version, as in personal injury and breach of contract suits. This standard is the easiest to meet and applies to all civil cases unless otherwise provided by law.
The concept of "preponderance of the evidence" can be visualized as a scale representing the burden of proof, with the totality of evidence presented by each side resting on the respective trays on either side of the scale. If the scale tips ever so slightly to one side or the other, the weightier side will prevail. If the scale does not tip toward the side of the party bearing the burden of proof, that party cannot prevail.
Trial lawyers will often instruct juries that their clients must prevail at trial if they have proved their positions by as little as 51 percent likelihood of probability (anything from 51 to 100 percent constitutes a preponderance of evidence). In other words, if a jury believes there is a 51-49 percent likelihood that a defendant (in a civil case) was negligent or liable, the plaintiff/complainant has met its burden of a preponderance of evidence, and will prevail. This is particularly helpful when juries are torn between the testimony of two expert witnesses presenting opposite opinions or views. Whether it is an issue of credibility or of expertise, the jury will decide which is the more likely version that warrants more evidentiary weight.
Certain civil suits require a stronger burden of proof, in terms of percentage of weight of the presented evidence. A burden to show "clear and con-
This higher burden is generally employed when the alleged offense has special elements to establish, such as in a claim for fraud, for a lost will of inheritance, or when family members wish to withdraw life support from a loved one. In these and other cases, the stakes at risk are high and the defending party serves to lose a substantial benefit, property, (or especially) personal or fundamental liberty such as those protected under the First Amendment.
This standard of proof is used exclusively in criminal cases, and a person cannot be convicted of a crime unless a judge or jury is convinced of the defendant's guilt beyond a reasonable doubt. Precisely, if there is any reasonable uncertainty of guilt, based on the evidence presented, a defendant cannot be convicted.
Ostensibly, this burden requires that a trier of fact (judge, jury, arbiter) is fully satisfied and entirely convinced to a moral certainty that the evidence presented proves the guilt of the defendant. There is essentially no room for wavering or uncertainty; the trier of fact believes the evidence to be precise, indubitable, and leaves one with an inescapable conclusion of certainty. Whereas, in a civil trial, a party may prevail with as little as 51 percent probability (a preponderance), those legal authorities who venture to assign a numerical value to "beyond a reasonable doubt" place it in the certainty range of 98 or 99 percent.
In a criminal trial, the state must prove that the defendant is guilty, and the burden of proof is always with the state for the case in chief. The defendant, carrying a presumption of innocence, has no burden of proof, and need prove nothing. A defendant may sit mute at a criminal trial, because the state has the burden of proof to show that the defendant satisfied each element of the statutory definition of a crime by his or her action/participation or failure to act. Any evidence offered by the defense is generally directed toward discrediting or undermining the state's evidence, and does not contribute to any evidentiary burden.
However, if a defendant initiates to offer a defense to the jury, such as a defense of insanity, the burden technically shifts to the defendant to prove insanity and avoid a verdict of guilt. Likewise, a defendant claiming self-defense or duress carries the burden of proof to establish all elements of those defenses to either avoid or mitigate a guilty verdict.
In contrast to the rare circumstances where a burden of proof may shift in a criminal trial, there are several applications of such a concept in civil matters.
Generally speaking, the party that filed the action (be it a criminal complaint by the state's attorney, or a civil law suit by a private party), has the burden of proof to establish, through evidence, all the requisite elements of a prima facie case. For example, in a case for the offense of tortious battery, the complainant has the burden of proof to establish (1) that there was a specific intent to make contact with the person of another (2) in a harmful or offensive manner, (3) without consent, and (4)a harmful or offensive contact occurred.
If that burden is met, the burden of proof then shifts to the defendant in the case, who now has to plead and prove any defense, by a preponderance of evidence. Often, the defendant raises an affirmative defense, which will have its own elements of proof that must be met by the defendant. Of course, if the defendant raises a counterclaim against the plaintiff, the entire burden of proof shifts to the defendant on the matter of the counterclaim (or third party claim).
Another example of a shifting burden is that in employment discrimination cases. Once the plaintiff has met his or her burden of proof by establishing a prima facie case, the burden of proof shifts to the defendant to show some non-discriminatory reason for its action. If the defendant essentially meets that burden of proof by presenting legitimate reasons for the alleged action, the burden again shifts back to the plaintiff to show that the proffered "legitimate" reasons were pretextual.
A burden of proof generally attaches at the trial or adjudicatory stage. A plaintiff (in a civil case) or a petitioner (in an administrative case), or the state (in a criminal case) need only allege the existence of facts needed to prove each requisite element of the
In matters coming before an administrative tribunal, such as workers' compensation boards, social security benefits hearings, or Internal Revenue Service audits or hearings, the burden of proof generally lies with the party claiming the benefit or beneficial treatment. The agency or board need only articulate a reasonable basis for denial of a claim or benefit. Of course, its decision can generally be appealed, but only in limited context (e.g., abuse of discretion). However, in cases involving the suspension, revocation, or forfeiture of some benefit already being received by a party, the burden typically rests with the agency, as it is the agency that initiates the action.
Criminal Procedure. Wayne R. LaFave, Jerold h. Israel, and Nancy J. King. West Group, 2001.
