BURDEN OF PERSUASION
The onus on the party with the BURDEN OF PROOF to convince the trier of fact of all elements of his or her case. In a criminal case the burden of the government to produce evidence of all the necessary elements of the crime BEYOND A REASONABLE DOUBT.
The burden of persuasion is the affirmative
duty of a party to establish his or her right to
judicial relief by convincing the trier of fact, the
judge or the jury, that the facts asserted are true
and support the allegations. Whereas the BURDEN
OF GOING FORWARD shifts from the prosecution
to the defense in a criminal case, or from
the plaintiff to the defendant in a civil case, as
evidence is presented and disproved, the burden
of persuasion remains with the plaintiff or the
prosecution until the case is concluded. The
phrase burden of persuasion is often used interchangeably
with the phrase burden of proof.
The burden of proof varies depending on
whether the proceeding is criminal or civil. In a
criminal case, the burden of proof required of
the state or government will be satisfied by evidence
that demonstrates “beyond a reasonable
doubt” that the defendant has committed the
crime. Proof beyond a reasonable doubt does
not require that the proof be so clear that no
possibility of error can exist; no criminal prosecution
would ever prevail if that were the standard.
On the other hand, reasonable doubt will
be found to exist (and the defendant found not
guilty) if the evidence produced only demonstrates
that it is slightly more probable that the
defendant committed the crime than that she or
he did not. The REASONABLE DOUBT STANDARD
has been defined to mean that the evidence must
be so conclusive and complete that all reasonable
doubts are removed.
In a civil matter, a plaintiff is required to
establish his or her case by “a preponderance of
the evidence.” A PREPONDERANCE OF THE EVIDENCE
is a body of evidence that is of greater
weight or is more convincing than the evidence
offered in opposition—evidence that as a whole
shows that the facts asserted by the plaintiff and
sought to be proved are more probable than
not.
Another burden of proof applied in some
matters is that the evidence must be “clear and
convincing.” This standard of proof falls somewhere
between the civil preponderance-of-theevidence
standard and the criminal beyond-areasonable-
doubt standard. Clear and convincing
evidence requires the trier of fact to have a
“firm belief” that the facts have been established.
The clear-and-convincing standard,
though not used nearly as often as the other two
standards, has been applied to some civil cases,
including suits seeking the reformation of a
contract. In addition, the SUPREME COURT OF
THE UNITED STATES has held that the clear-andconvincing
standard is the constitutionally
required burden of proof in a civil commitment
proceeding (Addington v. Texas, 441 U.S. 418, 99
S. Ct. 1804, 60 L. Ed. 2d 323 [1979]).
FURTHER READINGS
Johnson, Calvin H. 1997. “IRS Restructuring: Burden of Persuasion
vs. Burden of Production.” Tax Notes 77
(November 3): 624.
Rothstein, Paul F. 1981. Evidence. 2d ed. St. Paul, Minn.:
West.
Sprung, Marshall S. 1996. “Taking Sides: The Burden of
Proof Switch.” New York University Law Review 71
(November): 1301–37.
Stratton, Sheryl. 1998. “Burden of Proof Shift—Making
Sense of a Political Provision.”Tax Notes 80 (August 24):
887–9.
