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CaseBriefs

Burden Of Proof

A.

Burden of proof is an ambiguous term used to encompass two separate ideas: the burden of producing evidence and the burden of persuasion.

1. Burden of Producing Evidence:
The burden of producing evidence, sometimes referred to as the burden of going forward, is the responsibility of providing some evidence from which it can be concluded that the fact at issue exists. When a party fails to satisfy the burden of producing evidence, the fact does not go to the jury, and the party risks a directed verdict.


2. Burden of Persuasion:
The burden of persuasion is the responsibility of persuading the trier of fact that the fact at issue is true. The party that bears the burden of persuasion must satisfy that burden in order to prevent a decision against it.

B. Allocation of the Burdens of Proof

1. Burden of Producing Evidence:
The burden of producing evidence is usually allocated to the party that asserts the affirmative fact or proposition to be proved. For this reason, the burden of producing evidence may shift back and forth during the course of a trial.

a. Civil Cases: In civil cases, the burden of producing evidence is originally carried by the plaintiff. Once the plaintiff has satisfied the burden, and made out a prima facie case, the burden usually shifts to the defendant. The defendant must then produce evidence either to support a defense or to rebut the evidence produced by plaintiff. The burden of producing evidence may shift back and forth several times in this manner.

b. Criminal Cases:

i. At trial: In a criminal trial, the burden of producing evidence is originally carried by the prosecution. The defendant only carries the burden of producing trial evidence if he wishes to assert an affirmative defense. In some jurisdiction, the prosecution bears the burden of producing evidence to establish the non-existence of an affirmative defense.
ii. In pre- and post-trial matters: In pre-trial and post-trial proceedings, the question of who bears the burden of production varies according to the issue in dispute. For example, the prosecution bears the burden of producing evidence that a defendant should be detained prior to his trial. Once the defendant has been detained prior to trial, the defendant bears the burden of producing evidence justifying reconsideration of his detention.

Content Type: Outline


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