Burden of Persuasion

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-the-evidence standard and the criminal beyond-a-reasonable-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-and-convincing 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.