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Burden of Proof: An Essay of Definition

Posted By Charlene Sabini, PP, CLP, ALP, Thursday, April 19, 2018
Updated: Wednesday, April 25, 2018

burden of proof. 1. A party’s duty to prove a disputed assertion or charge. The burden of proof includes both the burden of persuasion and the burden of production. 2. Loosely, burden of persuasion.


burden of persuasion. (1923) A party’s duty to convince the fact-finder to view the facts in a way that favors that party. • In civil cases, the plaintiff’s burden is usually “by a preponderance of the evidence,” while in criminal cases the prosecution’s burden is “beyond a reasonable doubt.” – Also termed persuasion burden; risk of non-persuasion; risk of jury doubt. – Also loosely termed burden of proof.


burden of production. (1893) A party’s duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against the party in a peremptory ruling such as a summary judgment or a directed verdict. – Also termed burden of going forward with evidence; burden of producing evidence; production burden; degree of proof. 1


Burden of Proof in a Civil Lawsuit

When an individual files a civil lawsuit against someone else, the burden of proof rests on his or her shoulders. When the parties go to court, they each have an opportunity to tell their side of the story. Of course, if that was all that was needed, nearly every case would end in a “he said / she said” situation. The party who filed the lawsuit, called the “plaintiff” or the “petitioner,” must prove that the things alleged in the lawsuit are true and that the other party, called the “defendant” or the “respondent,” caused harm or damages.

The standard to which the plaintiff must prove his case in a civil lawsuit is quite different from the standard of proof required in a criminal case. In a civil case, it need only be proven by a preponderance of evidence, which means that it is more likely than not that the defendant’s actions caused the plaintiff’s damages. There are some types of civil cases that are considered to be more serious. These cases must be proven by clear and convincing evidence, which means that the evidence presented against the defendant must have a high probability of being true.2

Burden of Proof in a Criminal Case

In a criminal case, the accused person is by law assumed innocent until the prosecution proves that he is guilty. The burden of proof in a criminal case rests on the prosecution, with no requirement that the defendant prove that he is innocent. The standard to which the prosecution must prove the defendant’s guilt is much higher than in a civil case, as the defendant’s freedom is often at risk. In a criminal matter, the prosecution must prove, beyond a reasonable doubt, that the defendant did the deed.

There are a few circumstances in which a defendant may want to take action in proving his or her innocence. If the defendant wishes, for instance, to make a claim that he is not guilty by reason of insanity, the burden of proving that he was insane at the time of the crime rests on the defendant. Claims of duress or self-defense also require the defendant to prove the circumstances. 3

Again, the legal concept of the burden of proof encompasses both the burdens of production and persuasion. Burden of proof is often used to refer to one or the other. Burden of proof and burden of persuasion are also sometimes used to refer to the standard of proof.4

Shifting Sands of Burden

When the prosecution establishes a fact that tends to prove an element of a crime, the burden essentially switches to the accused, not necessarily to disprove the fact, but to raise a doubt about it. The defendant need not raise a doubt about every fact that the prosecution tries to prove—creating enough doubt about any point that’s crucial to a guilty verdict will suffice. Of course, the more convincing the fact is, the tougher the defendant’s burden is.

For instance, suppose the prosecution shows that, when searching the defendant, the police found a watch that store records reflect as stolen. In defense of a burglary charge, the defendant would probably have to give a plausible explanation for possessing the watch legally. By producing a receipt or testimony that the watch was a gift, the defendant would essentially shift the burden back to the prosecution. 5

Generally, the prosecution has the burden of proving every element of a crime beyond a reasonable doubt. But while a defendant isn’t required to prove innocence in order to avoid conviction, the prosecution doesn’t have to prove guilt to the point of absolute certainty. And despite the general rule that the prosecution bears the burden of proof, there are instances when the burden shifts to the defendant. 6


Juvenile Dependency Hearings: Burden of Proof

In nearly all cases where a government agency such as CPS (or DHS in Oregon) files allegations against you, that agency has the burden of proof. It is the job of the juvenile attorney experienced in juvenile dependency law to protect and fight for the client and against the allegations that are lodged against the client.

Standards of Proof in Juvenile Dependency Court

      Preponderance of the Evidence

Proof which is of greater weight or more convincing than the proof that is offered in opposition to it; that is, proof which as a whole shows that the fact sought to be proved is more probable than not. This is the standard of proof in Juvenile and Dependency cases including Jurisdiction Hearings.

     Clear and Convincing Evidence

Proof that results in a reasonable certainty of the truth of the fact or assertion in controversy. This is the standard of proof that is used in Juvenile and Dependency Court for disposition hearings. If the county CPS agency is seeking a disposition of family reunification over your family, the burden of proof rests with that government agency.

Real World Meaning: The burden shifts again to the county; their proof must be 70-80% more convincing or stronger than that of the opposing party (you).

     Reasonable Doubt (NOT used in juvenile court) 7

Juvenile proceedings are civil as opposed to criminal. Instead of being formally charged with a crime, juvenile offenders are accused of “committing a delinquent act.”



In summary, the burden of proof refers to the duty of a party making a claim to prove that the claim is true. The phrase is most commonly used in the context of criminal trials, where the defendant is presumed innocent until proven guilty. In a criminal trial, the obligation to prove the defendant's guilt belongs to the government. In a civil trial, it's the plaintiff (the party making a claim for civil damages) who carries the burden of proof. Because the burden of proof belongs to the party making the claim, the party against whom the claim is made is under no obligation to prove their innocence or to prove that their position is the correct one.

It's important to remember that burden of proof doesn't only refer to the amount of evidence presented. Rather, the quality of the evidence produced is as important as the amount of evidence presented. 8

  1. Black’s Law Dictionary, 223 (9th  ed. 2009)
  2. https://legaldictionary.net/burden-of-proof/, last viewed October 14, 2017

  3. Ibid.

  4. Burden of Proof, http://dictionary.findlaw.com/definition/burden-of-proof.html

  5. Burdens of Proof in Criminal Cases, https://www.nolo.com/legal-encyclopedia/burdens-proof-criminal-cases.html, last viewed October 14, 2017

  6. Ibid.

  7. Dependency Hearings: Burden of Proof, http://www.cps-lawyers.com/dependency-proof.html, last viewed October 14, 2017

  8. Brittany McKenna, Burden of Proof: Definition and Cases, http://study.com/academy/lesson/burden-of-proof-definition-cases.html

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