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Burden of Proof (Standards of Proof)

Who has to prove what, and how convincingly, before a court will rule for them - the difference between the burden of production and the burden of persuasion, the three standards (preponderance of the evidence, clear and convincing evidence, beyond a reasonable doubt) and where each applies, presumptions that shift the burden, and why the burden decides cases where the evidence is in balance.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

The burden of proof answers two questions the law has to settle before any dispute can be decided: which party must prove a contested fact, and how convincing the proof must be. The party who asserts a claim ordinarily bears the burden on each of its elements - the plaintiff on the elements of the claim, the defendant on the elements of an affirmative defence, the prosecution on every element of a crime - and if the evidence on a fact is in perfect balance, the party with the burden loses on that fact. The burden has two parts. The burden of production is the duty to come forward with enough evidence that a reasonable fact-finder could find in that party's favour; a party who fails it loses by directed verdict or summary judgment without the other side having to answer. The burden of persuasion is the duty to convince the fact-finder to the required degree once all the evidence is in, and it never shifts from the party who started with it, though the burden of production can move back and forth as evidence is introduced.

The law recognises three standards of persuasion. In most civil cases the standard is a preponderance of the evidence: the fact is more likely true than not, however slightly. A heightened standard, clear and convincing evidence, applies where the stakes are unusually high or the law is wary of the claim - termination of parental rights, civil commitment, fraud in many states, punitive damages in some, the reformation of a written instrument, and the invalidity of an issued patent. The criminal standard, proof beyond a reasonable doubt, is constitutionally required for every element of a charged offence and for any fact that increases the maximum or mandatory minimum sentence; it is not proof to a certainty, and courts are cautious about defining it further. Which standard applies is a question of law for the court, and the jury is instructed on it; a judge sitting without a jury applies it in the findings.

Presumptions and statutes adjust who carries the burden. A presumption directs the fact-finder to assume one fact from proof of another - that a letter properly mailed was received, that a person absent for years is dead, that a child born to a married woman is her husband's - and in most jurisdictions shifts only the burden of production, disappearing once contrary evidence is offered, though some presumptions are made conclusive or burden-shifting by statute. Employment-discrimination cases use a structured shifting of production burdens that is often misdescribed as shifting the burden of proof. Many statutes place the burden on the party with better access to the facts, and a party who destroys or withholds evidence may face an adverse inference or a shifted burden as a sanction. The burden also explains outcomes that look inconsistent: a defendant acquitted of a crime can be held liable for the same conduct in a civil suit, because the civil plaintiff needs to prove less.

Where this comes from

The constitutional requirement of proof beyond a reasonable doubt in criminal cases is In re Winship, 397 U.S. 358 (1970), extended to sentencing facts by Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013); the treatment of jury instructions defining the standard is Victor v. Nebraska, 511 U.S. 1 (1994). The clear-and-convincing standard is constitutionally required for termination of parental rights by Santosky v. Kramer, 455 U.S. 745 (1982), and for civil commitment by Addington v. Texas, 441 U.S. 418 (1979); the preponderance standard as the civil default is discussed in Grogan v. Garner, 498 U.S. 279 (1991), and Herman & MacLean v. Huddleston, 459 U.S. 375 (1983). Patent invalidity is Microsoft Corp. v. i4i Limited Partnership, 564 U.S. 91 (2011). Presumptions in federal civil cases are Federal Rule of Evidence 301, and the employment-discrimination framework is McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), with the persuasion burden confirmed in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). State evidence codes (California Evidence Code §§ 500-502 and §§ 600-670 on presumptions is a detailed model) govern state courts.

When people hire a lawyer for this

The burden of proof is usually invisible to a party until a case is close, and then it is everything: the party who bears it must build a record that clears the standard on every element, and the party who does not can win by leaving one element unproved. A lawyer's early assessment of who has the burden on which issue, and whether a heightened standard applies, shapes what evidence is gathered and whether the case is worth bringing or defending at all. A person facing both a criminal charge and a civil claim over the same events should have counsel coordinate the two, because the different standards mean that silence, testimony and a plea each carry different consequences across the two cases.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

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