Burden of Proof –

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burden of proof:

1. A party’s duty to prove a disputed assertion or charge; a proposition regarding which of two contending litigants loses when there is no evidence on a question or when the answer is simply too difficult to find.  *  The burden of proof includes both the burden of persuasion and the burden of production.  — aka evidentiary burden; evidential burden; onus probandi. See SHIFTING THE BURDEN OF PROOF. Cf. STANDARD OF PROOF.

2. Loosely, BURDEN OF PERSUASION. — Abbr. BOP. [1]

1. The duty of establishing ultimately in the trial the truth of a given proposition or issue by such quantum of evidence as the law demands int eh case in which the issue arises. 29 Am J2d Ev § 123. [2]

1. The duty of establishing the truth of a matter; the duty of proving a fact that is in dispute.  In most instances the burden of proof, like the burden of evidence, shifts from one side to the other during the course of a trial as the case progresses and evidence is introduced by each side. [3]

     Excerpt from Rollin M. Perkins & Ronald N. Boyce’s Criminal Law (3d ed. 1982):

     “In the past the term ‘burden of proof’ has been used in two different senses.

(1) The burden of going forward with the evidence.  The party having this burden must introduce some evidence if he wishes to get a certain issue into the case.  If he introduces enough evidence to require consideration of this issue, this burden has been met.
(2) Burden of proof in the sense of carrying the risk of nonpersuasion.  The one who has this burden stands to lose if his evidence fails to convince the jury— or the judge in a nonjury trial.

     The present trend is to use the term ‘burden of proof’ only with this second meaning . . . . [4]

     Excerpt from William D. Hawkland’s Uniform Commercial Code Series (1984):

     “The expression ‘burden of proof’ is tricky because it has been used by courts and writers to mean various things.  Strictly speaking, burden of proof denotes the duty of establishing by a fair preponderance of the evidence the truth of the operative facts upon which the issue at hand is made to turn by substantive law.  Burden of proof is sometimes used in a secondary sense to mean the burden of going forward with the evidence.  In this sense it is sometimes said that a party has the burden of countering with evidence a prima facie case made against that party. [5]

proof – the effect of evidence; the establishment of a fact by evidence.

burden of persuasion a party’s duty to convince the fact-finder to view the facts in a way that favors that party.  *  In civil cases, the plaintiff’s burden is usually “by a preponderance of the evidence,” while in criminal cases the prosecution’s burden is “beyond a reasonable doubt.” — aka persuasion burden; risk of nonpersuasion; risk of jury doubt; (loosely) burden of proof.  See STANDARD OF PROOF.

burden of production (1893) A party’s duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against the party in a peremptory ruling such as a summary judgment or a directed verdict. — aka burden of going forward with evidence; burden of producing evidence; production burden; degree of proof.

middle burden of proof (1966) A party’s duty to prove a fact by clear and convincing evidence.  *  This standard lies between the preponderance-of-the-evidence standard and the beyond-a-reasonable-doubt standard.  See clear and convincing evidence under EVIDENCE.

shifting the burden of proof (1805) In litigation, the transference of the duty to prove a fact from one party to the other; the passing of the duty  to produce evidence in a case from one side to another as the case progresses, when one side has made a prima facie showing on a point of evidence, requiring the other side to rebut it by contradictory evidence.

burden-shifting analysis (1980) A court’s scrutiny of a complainant’s evidence to determine whether it is sufficient to require the opposing party to present contrary evidence.  *  Burden-shifting is most commonly applied in discrimination cases.  If the plaintiff presents sufficient evidence of discrimination, the burden shifts to the defendant to show a legitimate, nondiscriminatory basis for its actions.  The precise components of the analysis vary according to the specifications of particular statutes. 

  • McDonnell Douglas test (1975) Employment law. The principle for applying a shifting burden of proof in employment-discrimination cases, essentially requiring the plaintiff to come forward with evidence fo discrimination and the defendant to come forward with evidence showing that the employment action at issue was taken for nondiscriminatory reasons.  *  Under this test, the plaintiff  must first establish a prima facie case of discrimination, as by showing that the plaintiff is a member of the protected group and has suffered an adverse employment action.  If the plaintiff satisfies that burden, then the defendant must articulate a legitimate, nondiscriminatory reason for the employment action at issue.  If the defendant satisfies that burden, then the plaintiff must prove that the defendant’s stated reason is just a pretext for discrimination and that discrimination was the real reason for the employment action. McDonnell Douglas Corp. v Green, 411 U.S. 792, 93 S.Ct. 1817 (1973)[1]

burden of evidence:

1. The duty of a party to proceed with evidence at the beginning, or at any subsequent stage, of the trial, in order to make or meet a prima facie case. 29 Am J2d Ev § 123.
      This duty, otherwise, an perhaps more appropriately, called the burden of producing evidence, may arise at different stages of the trial, even be borne successfully once, only to arise against at a later stage, thereby being distinguished from the “burden of proof” which is one to be carried during the entire trial, that is, ultimately.
     The term “burden of evidence” has been defined as meanign the burden of “getting by” the judge to the jury, by making a prima facie showing as to each factual ingredient necessary to established a prima facie case.  having done this, a plaintiff has discharged his buren of evidence, and the burden shifts to the defendant to produce, if he desires, competent controverting evidence, which, if believed, will offset the plaintiff’s prima face case.  If the defendant has thus met the burden of evidence and made a prima facie defense the burden thereupon swings back tot he plaintiff to bring forward evidence in rebuttal, and so on. McCloskey v Koplar, 329 Mo 527, 46 SW2d 557, 92 ALR 641. [2]

1. See burden of going forward. [3]

burden of going forward:

1. The duty of a party, with respect to certain issues being tried, to produce evidence sufficient to justify a verdict before the other party is obligated to produce evidence to the contrary.  This burden is also referred to as the burden of evidence, the burden of proceeding, and the burden of producing evidence.  The burden of going forward may shift back and forth between the parties during the curse of a trial.
See prima facie case. [3]


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[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6

[2]: Ballantine’s Law Dictionary with Pronunciations
Third Edition
 by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]:  Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.

[4]: Rollin M. Perkins & Ronald N. Boyce, Criminal Law 78 (3d ed. 1982).

[5]: William D. Hawkland, Uniform Commercial Code Series 5 2A-516:08 (1984).


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