Don't Let Burdens Burden You
Navigating the different burdens in law school and on the bar exam can sometimes be challenging. The terms "burden of proof," "burden of production," and "burden of persuasion" are related fundamental concepts, apply in both civil and criminal cases, and often appear as issues on the bar exam
Let’s break the burdens down:
🔎 Burden of Proof
The burden of proof is an overarching concept that determines which party is responsible for proving the facts in a case. It encompasses both the burden of production and the burden of persuasion.
🔎 Burden of Production
The burden of production refers to a party’s obligation to present sufficient evidence to support their claims or defenses and avoid judgment against her as a matter of law. This burden must be met to move a case forward to the next stage. In other words, a party must provide enough evidence to establish a prima facie case. If the burden of production is not met, the case can be dismissed, or the judge may direct a verdict against the party lacking sufficient evidence.
🔎 Burden of Persuasion
The burden of persuasion comes into play when the appropriate party has sustained its burden of production and only when all the evidence is in. The burden of persuasion refers to the necessity of convincing the factfinder (either the judge or jury) of the truth of the claims made, to a certain standard of proof. It remains with the party who has the overall burden of proving a point. This is what is usually meant when the term “burden of proof” is used.
There are three standards of persuasion:
1️⃣ Preponderance of the Evidence
Commonly used in civil cases, this standard requires the evidence to show that something is more likely true than not (i.e., the scales tip slightly in favor of one side).
2️⃣ Clear and Convincing Evidence
This higher standard is used in certain civil cases, requiring the evidence to be highly probable or reasonably certain.
3️⃣ Beyond a Reasonable Doubt
Used exclusively in criminal cases, this is the highest standard, requiring the evidence to leave no reasonable doubt regarding the defendant’s guilt.
To connect the burdens, think of the burden of proof as encompassing both the burden of production and the burden of persuasion. It defines the overall responsibility of a party to prove the facts of the case. The burden of production is about presenting enough evidence to allow the case to proceed and ensuring there is a legitimate issue for the factfinder to consider. Once the burden of production is met, the burden of persuasion requires the party to convince the factfinder to a certain standard. It’s about the level of certainty needed for the factfinder to decide in favor of the party bearing this burden.
The Supreme Court has interpreted the Due Process Clause of the U.S. Constitution to require that the prosecution prove all elements of an offense beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970). The burden of proof cannot be shifted to the defendant by presuming an essential element upon proof of other elements of the offense, because shifting the burden of persuasion with respect to any element of a criminal offense is contrary to the Due Process Clause. See Mullaney v. Wilbur, 421 U.S. 684 (1975).
The National Conference of Bar Examiners specifically tested this issue on the Multistate Essay Exam in February 2014.
