In this article...

In this article, we explain what burdens of proof are, and what preponderance of the evidence means including: Burden of Proof Definition (burden of production and persuasion),  Different Burdens of Proof and What They Mean.

The burden of proof is the standard that a party must meet in order for their assertion or claim or be legally established as fact. For example, if the burden of proof in a criminal case is “beyond a reasonable doubt”, the prosecution must provide enough evidence and persuasion to convince the trier of fact that an element of the crime (ex., he intended to do it) is true, beyond a reasonable doubt. This is the highest and hardest standard to meet.  

In a civil case, where the burden of proof is generally only “by a preponderance of the evidence,” it means that a plaintiff must provide enough evidence and persuasion to convince the trier of fact that the assertion the plaintiff is trying to prove is more likely true than not true.  

In this article, we explain what burdens of proof are, and what preponderance of the evidence means including:

  • Burden of Proof Definition (burden of production and persuasion)
  • Different Burdens of Proof and What They Mean

Burden of Proof Definition (burden of production and persuasion)

Burden of proof is defined as “a party’s duty to prove a disputed assertion or charge.” Black’s Law Dictionary (11th ed. 2019). Depending on which burden of proof is used, that duty will be easier or harder to meet.  

In any civil or criminal case there is a finder of fact. Generally, the finder of fact will either be the judge, or a jury, and they will decide whether or not the burden of proof is met. So, put another way, the burden of proof is the amount of evidence and persuasion necessary to make the finder of fact confident enough that your proposition is true and make a finding in your favor.  

The burden of proof can be broken into two pieces, the burden of persuasion and the burden of production.

The burden of production is the party’s responsibility to bring a sufficient amount of evidence forward. The burden of persuasion is the party’s responsibility to provide evidence that is persuasive enough to convince the fact finder that the assertion is true to a degree of confidence that satisfies the burden of proof.  

Commonly, the burden of production is on one party simply to provide “some evidence.” For example, in a criminal case, an affirmative defense might require that, for the defendant to raise the affirmative defense (such as self-defense), the defendant needs to provide “some evidence” in order to meet the burden of production. If the defendant has provided “some evidence” then the burden of proof will likely shift back to the prosecution to prove Beyond a Reasonable Doubt that the alleged crime was NOT committed in self-defense.  

The burden of persuasion is the duty that a party has to convince the finder of fact that something is true at or above the burden of proof. For example, if the burden of proof is “beyond a reasonable doubt,” the party has to convince the finder of fact that the assertion they are making is true, beyond a reasonable doubt. If the burden of proof is “by a preponderance of the evidence,” the party has to convince the finder of fact that the assertion they are making is more likely true than not true. What matters for the burden of persuasion is that the finder of fact has a degree of belief at or above the burden of proof.  

Different Burdens of Proof and What They Mean

Beyond a reasonable doubt

  • This is the highest burden of proof and is commonly used for criminal proceedings. While it is difficult to give a specific definition, (many different definitions are acceptable, and different jury instructions are used) and there is no exact degree of confidence required, it might help to think about “beyond a reasonable doubt” as greater than 90% likelihood of truth. Though many would argue it is more like 95% or more. While this would likely not be an acceptable definition in a court room, it should help give you a general idea of what it means.  

Clear and convincing evidence

  • Clear and convincing evidence is a common standard in criminal and civil proceedings for certain claims or types of evidence. Clear and convincing evidence is a higher degree of belief than “a preponderance of the evidence,” but not so much as “beyond a reasonable doubt.” Clear and convincing evidence roughly translates to “highly probable.” You could think of this standard as greater than 70% or 75% likelihood of truth. Again, giving a percent likelihood of truth would likely not be acceptable in court, but helps with understanding of the concept.  

By a preponderance of the evidence

  • A preponderance of the evidence is the most common standard for proving claims in civil proceedings. It is well established that it requires the party asserting a claim to prove that the claim he or she is making is more likely true than not. You could think of this standard as greater than 50% likelihood of truth.  

Probable cause

  • Probable cause is a standard that needs to be met by police when making an arrest, conducting a search, or requesting a warrant. Probable cause requires reasonable grounds, or evidence for believing that crime has been committed.  
  • State attorneys also use the probable cause standard when making charging decisions. Before charging someone with a crime, they must be able to show some evidence that would support an inference of guilt on each element of the charged offense.  

Reasonable suspicion

  • Reasonable suspicion is a standard most associated with “stop and frisks” by police. Reasonable suspicion requires that an officer have reasonable, articulable suspicion that crime is afoot. Basically, it means that in order to briefly stop someone, an officer needs to be able to give a reason why they believe criminal activity is occurring. It must be more than a “hunch.” The officer may do a limited search of the person for a weapon if the officer has an articulable reason to believe that the individual has a weapon.    

Some evidence

  • “Some evidence” is a very low standard to meet. If a party can produce any evidence to support a proposition, it is likely to be sufficient to meet this low burden of production. “Some evidence” is not necessarily used for a party to prove that their proposition is true, just to show that there is enough evidence to consider the proposition in the case.  

A mere scintilla of evidence

  • A mere scintilla of evidence is a common law standard that is probably the lowest standard to meet. Some motions, such as a motion for summary judgment, can only be decided if there is no evidence to be considered, and it is purely an “issue of law”. If there is any evidence to be considered, however small, it could become an “issue of fact” to be decided by a factfinder. Therefore, where the mere scintilla standard is used, it means that the smallest amount of evidence possible will be enough to make the issue an issue of fact (rather than law) and will have to be decided by a factfinder rather than by the judge as a matter of law.

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