Burden of Persuasion

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Related to Burden of Persuasion: burden of proof, Clear and convincing evidence

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.

References in periodicals archive ?
In the second example, a rebuttable mandatory presumption shifts the burden of production with regard to an element of the crime from the prosecution to the defense, which may amount to an impermissible directed verdict against the defendant and also may relieve the prosecution of its burden of persuasion if the court requires a certain quantum of rebuttal proof.
146) Then, if the plaintiff offers a feather's weight of evidence, he would thereby carry not only his burden of production but also his burden of persuasion.
164, 187-88 (1989) (holding that the black petitioner in a Title VII case could carry her burden of persuasion without showing that she was better qualified for a job than the white applicant hired in her stead).
affirmative defenses and thus to shift the burden of persuasion, but the
39) Two rationales support the Burdine opinion: (1) the burden of persuasion on a particular issue, as an established principle of evidence, never shifts, (40) and (2) the McDonnell Douglas progressive burden shifts should "bring the litigants and the court expeditiously and fairly to [the] ultimate question.
35) The burden of persuasion then shifted to the defendant, MAC, to apportion out the enhanced from the non-enhanced injuries.
Under the default rules of litigation, a principal (or franchisor) who seeks to prove a breach of promise by its agent typically will be allocated both the burden of production and the burden of persuasion.
merely allocated the burden of persuasion on provocation, as did the New
Consequently, if the insurer can draw the coverage battle lines on the plain of the accident/occurrence definition rather than on one of these fortuity-based exclusions, the insurer is potentially relieved of its need to shoulder the burden of persuasion as well as the maxim that exclusions are strictly construed against the insurer and in favor of coverage.
Morris had both the initial burden of producing evidence showing that the plaintiffs' suit was time-barred and the burden of persuasion that there was no triable issue of material fact and that she was entitled to judgment as a matter of law.
Nothing in the Communications Act of 1934, as cited by the FCC, shifts the ultimate burden of persuasion to others.