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 ?
There is no statute for the defense of being misinformed or otherwise prevented from complying with registration requirements, and the case law is silent as to (1) which party bears the burden of persuasion of the affirmative defense and (2) the standard for the burden of persuasion.
3d at 1195 ("Even if we assume that plaintiffs established a prima facie case and that the district court should have shifted the burden of persuasion to Devine to disprove causation, as plaintiff asserts, the district court's factual findings of no causation between any fiduciary breach and any loss persuade us that any burden-shifting error by the district court was irrelevant.
This Part will use belief function theory to explain why the traditional view of the law's burden of persuasion misrepresents the standards of 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.
42) In a "splintered" decision, (43) six Justices agreed that if a Title VII plaintiff shows that discrimination was a "motivating" or a "substantial" factor in the employer's action, the burden of persuasion should shift to the employer to show that it would have taken the same action regardless of that impermissible consideration.
at 8 ("[O]ne otherwise an infringer who assails the validity of a patent fair upon its face bears a heavy burden of persuasion.
This understanding of the nature and role of legislative decision-making may be the source of difference between Justice O'Connor and Professor Hamilton regarding the placement of the burden of persuasion.
The plaintiff then assumes the burden of persuasion to demonstrate by a preponderance of the evidence that the defendant's explanation is mere pretext (98) and to then convince a jury that the employer was instead motivated by age bias.
152) Tampering with the burden of persuasion to accomplish purposes external to the law of evidence or the substantive law, such as the promotion of a limitation of actions policy, indirectly compromises their ability to accomplish their own internal purposes.
The First Circuit in Hospital Cristo incorrectly applied Greenwich Collieries by failing to definitively place a burden of persuasion on the NLRB General Counsel.
32) Third, assuming the employer meets this minimal burden, the plaintiff, who retains the ultimate burden of persuasion, can establish intentional discrimination either directly by showing "that a discriminatory reason more likely motivated the employer or indirectly by showing that the proffered explanation is unworthy of credence [pretext].