{"id":13655,"date":"2018-02-11T17:26:11","date_gmt":"2018-02-11T17:26:11","guid":{"rendered":"https:\/\/reunitethestates.org\/?page_id=13655"},"modified":"2023-04-16T22:46:09","modified_gmt":"2023-04-16T22:46:09","slug":"burden-of-proof","status":"publish","type":"page","link":"https:\/\/reunitethestates.org\/?page_id=13655","title":{"rendered":"burden of proof – a party\u2019s duty to prove a disputed assertion or charge:"},"content":{"rendered":"

\u00a0\u00a0\u00a0\u00a0 This page is continued from Judicial Proceedings<\/a> >>>> Terms used in Civil and <\/em>Criminal Proceedings<\/a>:<\/strong><\/span><\/p>\n

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burden of proof<\/span>:<\/span>
\n<\/strong>(18C)<\/span><\/span><\/p>\n

1. A party\u2019s duty to prove a disputed assertion or charge; a proposition regarding which of two contending litigants<\/a> loses when there is no evidence<\/a> on a question or when the answer is simply too difficult to find.\u00a0 *\u00a0 The burden of proof includes both the burden of persuasion<\/a> and the burden of production.<\/strong>\u00a0 \u2014 aka evidentiary burden<\/span><\/strong><\/em>; evidential burden<\/strong><\/em><\/span>; onus probandi<\/strong><\/em><\/span>. See SHIFTING THE BURDEN OF PROOF. Cf. STANDARD OF <\/span>PROOF. <\/span><\/span><\/p>\n

2. Loosely, BURDEN OF PERSUASION<\/a>.<\/strong> \u2014 Abbr. BOP<\/strong><\/em><\/span>. [1]
\n<\/span><\/p>\n

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 \u00a7 123<\/span>.<\/strong> [2]<\/span><\/p>\n

1. The duty of establishing the truth of a matter; the duty of proving a fact that is in dispute.\u00a0 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.<\/strong> [3]<\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0 Excerpt from Rollin M. Perkins & Ronald N. Boyce’s Criminal Law<\/em><\/a> (3d ed. 1982):<\/strong><\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0 \u201cIn the past the term \u2018burden of proof\u2019 has been used in two different senses.<\/span><\/span><\/strong><\/span><\/p>\n

(1) The burden of going forward with the evidence.\u00a0 The party having this burden must introduce some evidence if he wishes to get a certain issue into the case.\u00a0 If he introduces enough evidence to require consideration of this issue, this burden has been met.
\n(2) Burden of proof in the sense of carrying the risk of nonpersuasion.\u00a0 The one who has this burden stands to lose if his evidence fails to convince the jury\u2014 or the judge in a nonjury trial. <\/strong><\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0 The present trend is to use the term \u2018burden of proof\u2019 only with this second meaning . . . .<\/span>\u201d<\/strong> [4]<\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0 Excerpt from William D. Hawkland’s Uniform Commercial Code Series<\/em><\/a> (1984):<\/span><\/strong><\/span><\/p>\n

\u00a0\u00a0\u00a0\u00a0 \u201cThe expression \u2018burden of proof\u2019 is tricky because it has been used by courts and writers to mean various things.\u00a0 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 <\/span><\/span><\/strong>turn by substantive law.\u00a0 Burden of proof is sometimes used in a secondary sense to mean the burden of going forward with the evidence.\u00a0 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.<\/span>\u201d<\/strong> [5]<\/span><\/span><\/p>\n

proof<\/a><\/span> – the effect of evidence<\/a>; the establishment of a fact by evidence<\/a>.<\/span><\/strong><\/span><\/p>\n

burden of persuasion<\/span><\/strong><\/a> –<\/strong> a party\u2019s duty to convince the fact-finder<\/a> to view the facts in a way that favors that party.\u00a0 *\u00a0 In civil cases, the plaintiff\u2019s burden is usually \u201cby a preponderance of the evidence,\u201d while in criminal cases the prosecution\u2019s burden is \u201cbeyond a reasonable doubt.\u201d <\/strong>\u2014 aka persuasion burden<\/strong><\/em><\/span>; risk of nonpersuasion<\/strong><\/em><\/span>; risk of jury doubt<\/span><\/strong><\/em>; (loosely) burden of proof<\/strong><\/em><\/span>.\u00a0 See STANDARD OF PROOF.<\/span><\/p>\n

burden of production<\/span> –<\/strong> (1893) A party\u2019s duty to introduce enough evidence<\/a> on an issue to have the issue decided by the fact-finder<\/a>, rather than decided against the party in a peremptory ruling such as a summary judgment or a directed verdict.<\/strong> \u2014 aka burden of going forward with evidence<\/strong><\/em><\/span>; burden of producing evidence<\/strong><\/em><\/span>; production burden<\/strong><\/em><\/span>; degree of proof<\/strong><\/em><\/span>.<\/span><\/p>\n

middle burden of proof<\/span> –<\/strong> (1966) A party\u2019s duty to prove a fact by clear and convincing evidence.\u00a0 *\u00a0 This standard lies between the preponderance-of-the-evidence standard and the beyond-a-reasonable-doubt standard.\u00a0<\/strong> See clear and convincing evidence<\/em> under EVIDENCE.<\/span><\/p>\n

shifting the burden of proof<\/span> –<\/strong> (1805) –<\/strong> In litigation, the transference of the duty to prove a fact from one party to the other; the passing of the duty\u00a0 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.<\/strong><\/span><\/p>\n

burden-shifting analysis<\/span> –<\/strong> (1980) A court\u2019s scrutiny of a complainant\u2019s evidence to determine whether it is sufficient to require the opposing party to present contrary evidence.\u00a0 *\u00a0 Burden-shifting is most commonly applied in discrimination cases.\u00a0 If the plaintiff presents sufficient evidence of discrimination, the burden shifts to the defendant to show a legitimate, nondiscriminatory basis for its actions.\u00a0 The precise components of the analysis vary according to the specifications of particular statutes.<\/strong>\u00a0 <\/span><\/p>\n