§ 4.03 Burden of Persuasion

• Jurisdiction: North Carolina

§ 4.03 Burden of Persuasion

The burden of persuasion refers to the convincing force of the evidence. Technically, it is the "risk of nonpersuasion." Three common standards of proof are used to define the legally required persuasive force of evidence: (1) "proof beyond a reasonable doubt" (the highest standard); (2) "clear and convincing evidence" (an intermediate standard); and (3) "preponderance of evidence" (more probable than not).⁸

These standards are used for the ultimate issues in a case, which are decided by the trier of fact (most often the jury). The ultimate issues are the elements of a crime, cause of action, or affirmative defense as defined by the substantive law. For example, proof beyond a reasonable doubt of all essential elements of the offense in criminal cases, and typically a preponderance of evidence for all elements of a cause of action in most civil cases, is required.

These standards of proof are also used for issues other than the ultimate ones. For example, in evidence law, the burden of persuasion on admissibility issues must be allocated to one of the parties. The general rule is: Once an objection to evidence is made, the offering party has the burden of persuading the trial judge by a preponderance of evidence that the item of evidence is admissible—e.g., that a hearsay statement fits within a recognized exception to the hearsay rule.⁹

[A] "Preponderance of Evidence" Standard

The term "preponderance of evidence" means "more likely than not," or a probability of 51 percent.¹⁰ The term "preponderance" is somewhat misleading because it implies a reference to the quantity of evidence. The burden of persuasion, however, does not concern the amount of evidence, only its convincing force. For example, a party could satisfy this standard with the testimony of one persuasive witness, even though the opposing party introduced the testimony of five less-convincing witnesses.¹¹

[B] "Clear and Convincing Evidence" Standard

The "clear and convincing evidence" standard is an intermediate standard, requiring more convincing force than the "preponderance of evidence" standard but less than the "beyond a reasonable doubt" standard. The term "highly probable" is as good as we can probably do in describing this standard.¹²

The "clear and convincing evidence" standard is sometimes used in civil fraud cases and is constitutionally required in some contexts. For example, in Santosky v. Kramer,¹³the Supreme Court held that the preponderance-of-evidence standard did not satisfy due process in Juvenile Court neglect proceedings involving the permanent termination of parental rights: "In parental rights termination proceedings, the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight."¹⁴ Similarly, in Addington v. Texas,¹⁵ the Court ruled that a person committed to a mental institution in a civil proceeding must be shown to be dangerous by clear and convincing evidence. The bottom line is that this standard is used when the stakes are greater than in the typical civil case.

[C] "Beyond a Reasonable Doubt" Standard

The "beyond a reasonable doubt" standard is the most demanding standard and applies almost exclusively in criminal cases. In In re Winship,¹⁶ the Supreme Court held that the Due Process Clause protects "against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime . . . charged."¹⁷ This standard, according to the Court, protects against erroneous convictions and assures community respect and confidence in the criminal process.¹⁸ In a concurring opinion, Justice Harlan noted that two types of error are possible at trial: (1) the conviction of an innocent person (false positive) and (2) the release of a guilty person through a "not guilty" verdict (false negative). The same types of error are also possible in civil litigation: (1) the plaintiff prevails when the defendant should have, and (2) visa versa. Nevertheless, the frequency of one type of error, as opposed to the other, raises different issues in civil and criminal cases. According to Justice Harlan:

In a civil suit between two private parties for money damages, for example, we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor. A preponderance of the evidence standard therefore seems peculiarly appropriate. . . .
. . . In a criminal case, on the other hand, we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty. . . . In this context, I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.¹⁹

The Supreme Court has decided several cases involving jury instructions that defined the phrase "beyond a reasonable doubt." Although due process requires the prosecution to prove the essential elements of the charged offense beyond a reasonable doubt, it does not require that any particular words be used to convey this standard—so long as "taken as a whole, the instructions correctly conve[y] the concept of reasonable doubt."²⁰ The Court, however, has acknowledged that "[a]ttempts to explain the term 'reasonable doubt' do not usually result in making it any clearer to the minds of the jury."²¹ In Cage v. Louisiana,²² the Court ruled a jury instruction unconstitutional...