§ 4.01 INTRODUCTION

• Jurisdiction: North Carolina

§ 4.01. INTRODUCTION

Burdens of proof are used all the time in every day affairs. In "instant replay" in professional football, the referee's decision on the field stands unless there is incontrovertible evidence that the decision is incorrect when the videotape is reviewed. Thus, the burden of persuasion is allocated to the party challenging the on-field decision. But why? Why allocate the burden to one party and not the other? Why choose "incontrovertible evidence," rather than a mere preponderance of evidence? There are policy reasons underlying these decisions.

Moreover, allocating the burden of proof may be determinative. Take the question of capital punishment. Is it a deterrent to murder? Given the uncertain empirical research, the party with the burden of proof will most likely lose. As this example illustrates, burdens of proof can be powerful instruments in situations of uncertainty. And, by their very nature, trials frequently deal with uncertainties of proof.

The term "burden of proof" is often confusing because there are two distinct burdens of proof: (1) the "burden of persuasion" and (2) the "burden of production." The burden of persuasion refers to the convincing force of the evidence. In contrast, the burden of production, sometimes called the "burden of going forward with evidence," refers to a party's responsibility to introduce evidence at trial.¹ In every case, these two burdens are allocated, at least initially, to one of the parties on every issue in the case.² However, the two burdens do not have to be allocated to the same party, even on the same issue.³

--------

Notes:

^[1] See Schaffer ex. rel. Schaffer v. Weast, 546 U.S. 49, 56 (2005) ("Part of the confusion surrounding the term arises from the fact that historically, the concept encompassed two distinct burdens: the 'burden of persuasion,' i.e., which party loses if the evidence is closely balanced, and the 'burden of production' i.e...