Everyone who watches Hollywood-based television has been exposed to the concept called burden of proof. Law and order type crime drama and popular press news coverage of reality-based criminal trials has made the government’s burden of proof beyond a reasonable doubt part of the shared cultural experience. Almost as many people understand that in non-criminal, or civil law, court proceedings, the party with the burden of proof is subject to a somewhat less stringent standard which is frequently phrased as proof by the preponderance of the evidence.
Yet ‘burden of proof’ is not a unified or monolithic concept. The phrase is simply a shorthand expression of two distinct but related procedural concepts:
- The burden of moving forward by producing admissible evidence, and;
- The burden of persuasion.
The popular conception for burden of proof emphasizes the latter element, or the burden of persuasion. The burden of persuasion generally does not shift from one party to another during the course of a court or administrative proceeding, but sometimes it can.
The burden of persuasion may not rest exclusively on just one side of a legal proceeding. One party may bear the burden of persuasion on some issues, but with respect to other legal issues the burden may rest on the opposing side. It all depends on the specific issue.
The burden of going forward with evidence, however, may shift several times from one side to another during the full course of a proceeding. Using a criminal law example, at the very beginning of a case immediately following arrest by the police, the government prosecutor may have the burden of producing enough credible evidence to persuade a judge or magistrate there is ‘probable cause’ to believe a crime was committed by the defendant to justify his or her temporary incarceration. Probable cause is a much less stringent burden of persuasion compared to ‘beyond a reasonable doubt.’
If the matter proceeds to trial, the government again goes first with the burden of introducing at least some evidence for every single element of a crime and that the defendant is the one who did the deed. When the government completes its offer of evidence, or rests its case, the burden to move forward shifts and the defendant has an opportunity to offer evidence to contradict or confound the government’s case, if the defendant chooses to do so. In many states the burden to prove an insanity defense rests on the defendant, who must introduce evidence and persuade in order to be successful.
If any phase of a legal proceeding ends with the party bearing the burden to produce evidence fails to do so adequately, and there is zero evidence in support of one or more of the essential legal elements of a claim or defense, the judge may summarily terminate the proceeding, in whole or in part, in favor of the party on the other side.