Burden of Proof (Standards of Proof)

Who has to prove what, and how convincingly, before a court will rule for them - the difference between the burden of production and the burden of persuasion, the three standards (preponderance of the evidence, clear and convincing evidence, beyond a reasonable doubt) and where each applies, presumptions that shift the burden, and why the burden decides cases where the evidence is in balance.

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What it means

The burden of proof answers two questions the law has to settle before any dispute can be decided: which party must prove a contested fact, and how convincing the proof must be. The party who asserts a claim ordinarily bears the burden on each of its elements - the plaintiff on the elements of the claim, the defendant on the elements of an affirmative defense, the prosecution on every element of a crime - and if the evidence on a fact is in perfect balance, the party with the burden loses on that fact. The burden has two parts. The burden of production is the duty to come forward with enough evidence that a reasonable fact-finder could find in that party's favor; a party who fails it loses by directed verdict or summary judgment without the other side having to answer. The burden of persuasion is the duty to convince the fact-finder to the required degree once all the evidence is in, and it never shifts from the party who started with it, though the burden of production can move back and forth as evidence is introduced.

The law recognizes three standards of persuasion. In most civil cases the standard is a preponderance of the evidence: the fact is more likely true than not, however slightly. A heightened standard, clear and convincing evidence, applies where the stakes are unusually high or the law is wary of the claim - termination of parental rights, civil commitment, fraud in many states, punitive damages in some, the reformation of a written instrument, and the invalidity of an issued patent. The criminal standard, proof beyond a reasonable doubt, is constitutionally required for every element of a charged offense and for any fact that increases the maximum or mandatory minimum sentence; it is not proof to a certainty, and courts are cautious about defining it further. Which standard applies is a question of law for the court, and the jury is instructed on it; a judge sitting without a jury applies it in the findings.

Presumptions and statutes adjust who carries the burden. A presumption directs the fact-finder to assume one fact from proof of another - that a letter properly mailed was received, that a person absent for years is dead, that a child born to a married woman is her husband's - and in most jurisdictions shifts only the burden of production, disappearing once contrary evidence is offered, though some presumptions are made conclusive or burden-shifting by statute. Employment-discrimination cases use a structured shifting of production burdens that is often misdescribed as shifting the burden of proof. Many statutes place the burden on the party with better access to the facts, and a party who destroys or withholds evidence may face an adverse inference or a shifted burden as a sanction. The burden also explains outcomes that look inconsistent: a defendant acquitted of a crime can be held liable for the same conduct in a civil suit, because the civil plaintiff needs to prove less.

Where this comes from

When people hire a lawyer for this

The burden of proof is usually invisible to a party until a case is close, and then it is everything: the party who bears it must build a record that clears the standard on every element, and the party who does not can win by leaving one element unproved. A lawyer's early assessment of who has the burden on which issue, and whether a heightened standard applies, shapes what evidence is gathered and whether the case is worth bringing or defending at all. A person facing both a criminal charge and a civil claim over the same events should have counsel coordinate the two, because the different standards mean that silence, testimony and a plea each carry different consequences across the two cases.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• AppealThe review of a trial court's decision by a higher court - what can be appealed and when (the final-judgment rule and its exceptions), the notice of appeal and why missing it is fatal, what "standard of review" means and why most appeals are lost on it, preserving error at trial, the record and briefs, and what an appellate court can and cannot do with the result.
• Attorney-Client Privilege and Work ProductThe two protections that keep what a client tells a lawyer, and what a lawyer prepares for a case, from being forced into evidence - what the privilege covers and what it does not, who holds it and how it is waived, the crime-fraud exception, the separate and narrower work-product doctrine, and how each is asserted in discovery.
• Complaint and Answer (Pleadings)The documents that start a civil case and frame what it is about - what a complaint must contain, how a defendant answers it, what an admission, denial and affirmative defense each do, counterclaims and cross-claims, and what happens when a pleading is late, deficient or needs to be amended.
• Contempt of CourtThe court's power to punish disobedience of its own orders - the mechanism that makes a court order more than a piece of paper.
• Court Fee Waiver (In Forma Pauperis)How a person who cannot afford court filing fees asks the court to excuse them - the federal and state procedures, who usually qualifies, and what a waiver does not cover.
• Default JudgmentA judgment entered because the person sued did not respond in time - the way most consumer debt lawsuits actually end.
• DepositionSworn, recorded, out-of-court questioning of a witness by the opposing lawyer, before any trial.
• DiscoveryThe pre-trial process in which each side must hand over relevant evidence to the other.
• Expert Witness (Daubert and Frye)A witness allowed to give opinions rather than only facts because of specialized knowledge - who qualifies, the gatekeeping test a judge applies to the reliability of the method (Daubert in federal court and most states, Frye in the rest), the written report and deposition that precede trial, the difference between a retained expert and a treating professional, and why a case can be lost when its expert is excluded.
• Fee Agreement and RetainerThe engagement letter that sets what a lawyer will do and how they are paid - hourly, flat or contingent fees, retainers held in trust, costs, and what to do about a fee dispute.
• Injunction and Temporary Restraining OrderThe court orders that require a party to do or stop doing something rather than pay money - the three stages (temporary restraining order, preliminary injunction, permanent injunction), the four-factor test for emergency relief, the bond the applicant must post, how an order is enforced through contempt, and why a violated order is obeyed first and challenged second.
• Jurisdiction and VenueThe three questions every lawsuit has to answer before its merits can be heard - whether the court has power over this kind of case (subject-matter jurisdiction), power over this defendant (personal jurisdiction), and whether this is the right place within the system to bring it (venue) - what each requires, how each is challenged, and why a judgment entered without jurisdiction is void.
• Limited-Scope Representation (Unbundled Legal Services)Hiring a lawyer for one defined part of a legal matter - advice, drafting a document, or a single hearing - instead of the whole case, and the written agreement that sets the boundary.
• Mediation and ArbitrationTwo ways of resolving a dispute outside a trial that are constantly confused - one produces an agreement you can walk away from, the other a decision you generally cannot appeal.
• Motion to DismissA request to end a case at the outset on the basis that, even if everything alleged is true, it does not amount to a legal claim.
• Pro Bono Legal HelpFree legal work by volunteer lawyers - what the professional rules ask of lawyers, how people of limited means are matched with a volunteer, and why it is not the same as legal aid.
• Release and Settlement AgreementThe document that ends a claim by giving up the right to bring it - normally final, and normally broader than people expect.
• Representing Yourself (Pro Se)The right to conduct your own case without a lawyer - available in almost every civil court, and held to almost the same standards as a lawyer.
• Res Judicata and Collateral Estoppel (Preclusion)The rules that stop a dispute from being litigated twice - claim preclusion, which bars a second suit on a claim that was or could have been decided, and issue preclusion, which bars re-arguing a specific issue actually decided, the elements of each, who is bound, the exceptions, and why "could have been raised" is the part that surprises people.
• Service of ProcessThe formal delivery of court papers that gives a court power over the person sued - and the step whose failure undoes more judgments than any other.
• Small Claims CourtA simplified court for lower-value disputes, designed to be used without a lawyer - and in some states lawyers are not allowed in it at all.
• Statute of LimitationsA deadline, set by statute, after which a legal claim can no longer be brought at all.
• SubpoenaA court-backed order to give evidence or hand over documents - enforceable against people who are not parties to the case at all.
• Summary JudgmentA ruling that decides a case, or part of one, without a trial because the essential facts are not genuinely in dispute.

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