§ 4.04 Burden of Production

• Jurisdiction: United States

§ 4.04 Burden of Production

The burden of production, sometimes called the "burden of going forward with evidence," refers to a party's responsibility to introduce evidence at trial. Technically, it is the risk of nonproduction that is at issue. The judge (never the jury) determines whether this burden has been satisfied. There are two possible adverse consequences if a party fails to satisfy the burden of production: (1) the party may suffer a directed verdict on that issue, or (2) in the case of an affirmative defense, the jury will not be instructed on the defense. Both consequences take the issue away from the jury.

[A] Directed Verdicts in Civil Cases

In civil cases, the burden of production typically lies on the plaintiff with respect to the elements of the cause of action.³⁴ Either party can suffer a directed verdict (judgment of law).³⁵ In deciding a motion for judgment as a matter of law, the trial court reviews all the evidence in the record.

In doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the nonmovant as well as that "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses."³⁶

"Physical facts" rule. Typically, direct evidence on the elements of a cause of action suffices to satisfy a party's burden of production.³⁷ An exception is the "physical facts" rule.³⁸ According to one court, "[i]t is generally agreed by all courts that the jury will not be permitted to believe testimony that is contradicted by physical facts. Were a witness to testify that the sun rose at midnight in Chicago, no one would argue that the jury might believe him. This is the sort of 'physical fact' that is within the realm of judicial notice."³⁹

[B] Directed Verdicts in Criminal Cases

In criminal cases, the prosecutor has the burden of production (as well as the burden of persuasion) on the elements of the crime. If the prosecutor fails to present sufficient evidence on any element, the prosecutor has failed to satisfy the burden of production, and the judge should enter a "directed verdict" (motion for a judgment of acquittal). Criminal Rule 29, the governing provision, does not specify the standard for evaluating the evidence.⁴⁰ Nevertheless, the trial court must determine whether there is sufficient evidence on each element of the charged crime from which a reasonable jury could find each element beyond a...