§ 4.05 Key Points

• Jurisdiction: United States

§ 4.05 Key Points

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." These two burdens are allocated, at least initially, to one of the parties on every issue in the case. They, however, do not have to be allocated to the same party, even on the same issue. For example, in some jurisdictions, the burden of production on self-defense in a criminal case is allocated to the accused, but once that burden is satisfied, the burden of persuasion rests with the prosecution to disprove self-defense.

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 the evidence: (1) "proof beyond a reasonable doubt" (the highest standard)...