BURDEN OF PROOF
A duty placed upon a civil or criminal defendant
to prove or disprove a disputed fact.
Burden of proof can define the duty placed
upon a party to prove or disprove a disputed
fact, or it can define which party bears this bur-
den. In criminal cases, the burden of proof is
placed on the prosecution, who must demon-
strate that the defendant is guilty before a jury
may convict him or her. But in some jurisdic-
tion, the defendant has the burden of establish-
ing the existence of certain facts that give rise to
a defense, such as the insanity plea. In civil cases,
the plaintiff is normally charged with the bur-
den of proof, but the defendant can be required
to establish certain defenses.
Burden of proof can also define the burden
of persuasion, or the quantum of proof by which
the party with the burden of proof must estab-
lish or refute a disputed factual issue. In criminal
cases, the prosecution must prove the defen-
dant’s guilt BEYOND A REASONABLE DOUBT.
Judges explain the REASONABLE DOUBT
STANDARD to jurors in a number of ways. Fed-
eral jury instructions provide that proof beyond
a reasonable doubt is “proof of such a convinc-
ing character that a reasonable person would
not hesitate to act upon it in the most important
of his own affairs.†State judges typically
describe the standard by telling jurors that they
possess a reasonable doubt as to the defendant’s
guilt if, based on all the evidence in the case, they
would be uncomfortable with a criminal convic-
tion. In giving the reasonable doubt instruction,
judges regularly remind jurors that a criminal
conviction imposes a variety of hardships on a
defendant, including public humiliation, incar-
ceration, fines, and occasionally the FORFEITURE
of property. Reasonable doubt is the highest
standard of proof used in any judicial proceed-
ing.
Reasonable doubt is also a constitutionally
mandated burden of proof in criminal proceed-
ings. The U.S. Supreme Court has ruled that the
DUE PROCESS CLAUSE of the FIFTH AMENDMENT
and Fourteenth Amendments to the federal con-
stitution prohibit criminal defendants from
being convicted on any quantum of evidence
less than proof beyond a reasonable doubt. IN RE
WINSHIP, 397 U.S. 358, 90 S. Ct. 1068, 23 L. Ed.
2D 368 (1970). Although the reasonable doubt
standard is not specifically mentioned anywhere
in the Constitution, the Court observed that the
standard is so deeply rooted in the nation’s his-
tory as to reflect the fundamental value that “it is
far worse to convict an innocent man than to let
a guilty man go free.â€
In civil litigation the standard of proof is
either proof by a PREPONDERANCE OF THE EVI-
DENCE or proof by clear and convincing evi-
166 BURDEN OF PLEADING
dence. Both are lower burdens of proof than
beyond a reasonable doubt. A preponderance of
the evidence simply means that one side has
more evidence in its favor than the other, even
by the smallest degree. Clear and convincing evi-
dence is evidence that establishes the truth of a
disputed fact by a high probability. Criminal tri-
als employ a higher standard of proof because
criminal defendants often face the deprivation
of life or liberty if convicted while civil defen-
dants generally only face an order to pay money damages if the plaintiff prevails.
FURTHER READINGS
Scheibe, Benjamin D. 2003. “Claim of Reverse Engineering
Doesn’t Alter Burden of Proof.” The Los Angeles Daily
Journal 116 (October 2).
Twining, William and Stein, Alex, eds. 1992. Evidence and
Proof. New York: New York University Press.
CROSS-REFERENCES
Burden of Persuasion; Due Process of Law; Evidence; Fifth
Amendment; Fourteenth Amendment; Proof; Reasonable
Doubt.
