BURDEN OF GOING FORWARD
The onus on a party to refute or to explain evidence
presented in a case.
The burden of going forward, also called the
burden of producing evidence, burden of production,
or the burden of proceeding, requires a
party in a lawsuit to refute or explain each item
of evidence introduced that damages or discredits
his or her position in the action, as a trial progresses.
Suppose a person is charged with the
possession of stolen goods. After the prosecution
has introduced evidence of the defendant’s
possession of such goods, the defense bears the
burden of refuting or explaining the evidence. If
the evidence appears unfavorable for the prosecution,
it has the burden of going forward to
produce more evidence to bolster its claim that
the defendant committed the crime. The failure
to produce more evidence may result in the
judge’s dismissing the charges against the defendant.
If the prosecution produces such evidence,
it shifts the burden of production back to the
defendant, who then must refute the additional
evidence.
The burden of going forward also shifts during
a civil proceeding. It shifts to the defendant
after the plaintiff rests its case, but it may shift
even before that time. In a WRONGFUL DEATH
case, for example, the plaintiff may, at a certain
point in the trial, file a motion asking for a ruling
(sometimes a motion for SUMMARY JUDGMENT
or a motion for a directed verdict) in his
or her favor by maintaining that he or she has
presented sufficient evidence to show that the
defendant’s actions resulted in the victim’s
death. The burden then shifts to the defendant
to produce additional evidence to refute the
plaintiff ’s claim; otherwise, the judge may grant
the plaintiff ’s motion, thus concluding the case
in the plaintiff ’s favor.
