BURDEN OF PROOF

burden of proof.

1. A party’s duty to prove a disputed assertion or charge. • The burden of proof includes both the burden of persuasion and the burden of production.

— Also termed onus probandi. See SHIFTING THE BURDEN OF PROOF.

2. Loosely, BURDEN OF PERSUASION. [Cases: Evidence 90. C.J.S. Evidence § 120–121, 126, 128.]

“In the past the term ‘burden of proof’ has been used in two different senses. (1) The burden of going forward with the evidence. The party having this burden must introduce some evidence if he wishes to get a certain issue into the case. If he introduces enough evidence to require consideration of this issue, this burden has been met. (2) Burden of proof in the sense of carrying the risk of nonpersuasion. The one who has this burden stands to lose if his evidence fails to convince the jury — or the judge in a nonjury trial. The present trend is to use the term ‘burden of proof’ only with this second meaning ….” Rollin M. Perkins & Ronald N. Boyce, Criminal Law 78 (3d ed. 1982).

“The expression ‘burden of proof’ is tricky because it has been used by courts and writers to mean various things. Strictly speaking, burden of proof denotes the duty of establishing by a fair preponderance of the evidence the truth of the operative facts upon which the issue at hand is made to turn by substantive law. Burden of proof is sometimes used in a secondary sense to mean the burden of going forward with the evidence. In this sense it is sometimes said that a party has the burden of countering with evidence a prima facie case made against that party.” William D. Hawkland, Uniform Commercial Code Series § 2A-516:08 (1984).

middle burden of proof. A party’s duty to prove a fact by clear and convincing evidence. • This standard lies between the preponderance-of-the-evidence standard and the beyond-a-reasonable-doubt standard. See clear and convincing evidence under EVIDENCE. [Cases: Evidence 596. C.J.S. Evidence §§ 1299, 1304–1306, 1308, 1310–1311, 1315–1317.]