Chapter 8 - §1. Burdens

JurisdictionUnited States

§1. Burdens

The burden of proof is often defined as two separate burdens—the burden of persuasion and the burden of production. See Director, Office of Workers' Comp. Programs v. Greenwich Collieries (1994) 512 U.S. 267, 272; U.S. v. Guzman-Mata (9th Cir.2009) 579 F.3d 1065, 1073. In California, however, the burden of proof is synonymous only with the burden of persuasion; the burden of production is handled separately. See Sargent Fletcher, Inc. v. Able Corp. (2d Dist.2003) 110 Cal.App.4th 1658, 1666-67; Méndez, Presumptions & Burden of Proof: Conforming the California Evidence Code to the Federal Rules of Evidence, 38 U.S.F.L.Rev. 139, 142 (2003).

§1.1. Burden of proof (i.e., burden of persuasion).

1. Overview. The burden of proof is the obligation of a party to establish the requisite degree of belief about a fact in the mind of the fact-finder. Evid. C. §115; see Li v. Superior Ct. (3d Dist.2021) 69 Cal.App.5th 836, 862. This burden requires the determination of two separate issues: (1) who bears the burden of proof (i.e., the assignment of the burden) and (2) what standard of proof applies to the fact at issue. See People v. Neidinger (2006) 40 Cal.4th 67, 74.

(1) Assignment of burden.

(a) General rule. Under Evid. C. §500, the general rule is that a party is assigned the burden of proof for each fact whose existence or nonexistence is essential to the claim for relief or defense asserted by that party unless otherwise provided by law. Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1211; see Pollock v. Tri-Modal Distribution Servs., Inc. (2021) 11 Cal.5th 918, 945; In re E.P. (4th Dist.2019) 35 Cal.App.5th 792, 798; Maldonado v. Epsilon Plastics, Inc. (2d Dist.2018) 22 Cal.App.5th 1308, 1328. Thus, unless statutory, constitutional, or decisional law allocates the burden of proof on a different basis, the general allocation rule under Evid. C. §500 applies. See Evid. C. §160 (term "law" as used in Evidence Code includes constitutional, statutory, and decisional law); Becerra v. McClatchy Co. (5th Dist.2021) 69 Cal.App.5th 913, 950 (burden of proof may be reallocated by statute or common law); Masellis v. Law Office of Leslie F. Jensen (5th Dist.2020) 50 Cal.App.5th 1077, 1087 (because exception under Evid. C. §500 uses term "law," which is defined to include judicial decisions under Evid. C. §160, exception recognizes that courts may alter standard allocation of burden of proof); see, e.g., Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 697-98 (municipal ordinances do not come within exception clause of Evid. C. §500), aff'd, (1986) 475 U.S. 260; Wanke, Indus., Commercial, Residential, Inc. v. AV Builder Corp. (4th Dist.2020) 45 Cal.App.5th 466, 480 (party asserting statute-of-limitations defense had burden of proving what portion of claims was time-barred); People v. Chavez (4th Dist.2018) 22 Cal.App.5th 663, 675 (D had burden to show that pretrial identification procedure was unduly suggestive or unreliable); People v. Perkins (4th Dist.2016) 244 Cal.App.4th 129, 136 (because Proposition 47 does not allocate burden of proof and D is seeking relief, D has burden of establishing his eligibility for resentencing). Under decisional law, courts have generally looked at the following factors in determining whether the general allocation rule should be altered:

[1] The knowledge of each of the parties about the particular fact at issue. Lakin v. Watkins Associated Indus. (1993) 6 Cal.4th 644, 660; People v. Accredited Sur. & Cas. Co., Inc. (5th Dist.2021) 65 Cal.App.5th 122, 131-32; 7 Cal. Law Revision Comm'n Rep. (1965) p. 1080.

[2] The availability of evidence to each party. Lakin, 6 Cal.4th at 660; Accredited Sur. & Cas. Co., Inc., 65 Cal.App.5th at 132.

[3] The most desirable result in terms of public policy in the absence of proof of the particular fact. Lakin, 6 Cal.4th at 660; Accredited Sur. & Cas. Co., Inc., 65 Cal.App.5th at 132; In re Marriage of Hein (5th Dist.2020) 52 Cal.App.5th 519, 543.

[4] The probability of the existence or nonexistence of the particular fact. Lakin, 6 Cal.4th at 660-61; Accredited Sur. & Cas. Co., Inc., 65 Cal.App.5th at 132.


While the burden of proof generally belongs to the party for whom the fact is essential, certain presumptions can affect the burden of proof if the facts giving rise to the presumption have been established. See "Affecting burden of proof," ch. 8, §2.3.2(1).

(b) Assigning burden in criminal cases. The U.S. Supreme Court has noted that although a state is normally within its power to regulate procedures under which its laws are carried out, including the burden of persuasion and the burden of producing evidence, its power to regulate such procedural burdens is limited under the Due Process Clause if "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Patterson v. New York (1977) 432 U.S. 197, 201-02; see, e.g., Medina v. California (1992) 505 U.S. 437, 452-53 (in determining whether it was proper to place burden on D to prove incompetency to stand trial, Supreme Court held there was no historical basis for concluding that placing burden on D would violate due process or transgress any recognized principle of fundamental fairness). Thus, federal due-process concerns can affect the proper assignment of the burden of proof for certain fact issues in a criminal proceeding. Some of the most common are the following:

[1] Elements of crime. In criminal cases, the Due Process Clause of the Fourteenth Amendment requires the prosecution to bear the burden of proof on each essential element of a charged crime in order to obtain a conviction. See Carella v. California (1989) 491 U.S. 263, 265; Noguera v. Davis (9th Cir.2021) 5 F.4th 1020, 1054; see also Evid. C. §520 (party claiming that person is guilty of crime or wrongdoing has burden of proof on that issue); People v. Potts (2019) 6 Cal.5th 1012, 1059 (same). The failure to instruct on the elements of a charged crime constitutes serious constitutional error that impacts a defendant's fundamental right to a jury trial and is a violation of due process. People v. Southard (1st Dist.2021) 62 Cal.App.5th 424, 437. Elements of a charged offense include elements of a statutory enhancement to a particular crime—that is, facts that would expose the defendant to "a greater punishment than that authorized by the jury's guilty verdict." Hurst v. Florida (2016) 577 U.S. 92, 97; see, e.g., Pen. C. §667(f)(1) (prosecution has burden to plead and prove prior serious or violent felony convictions for sentencing statute enhancement unless dismissed or stricken by court), §1170.12(d) (same); People v. Perez (2018) 4 Cal.5th 1055, 1059 (prosecution has burden to prove D's ineligibility beyond reasonable doubt for resentencing under Proposition 36); People v. Frierson (2017) 4 Cal.5th 225, 233-34 (prosecution has burden to plead and prove D's ineligibility for second-strike sentencing under Three Strikes Reform Act). But see People v. Thomas (2d Dist.2019) 39 Cal.App.5th 930, 935 (noting that D has initial burden of establishing prima facie case for eligibility for recall of third-strike sentence). Because the Due Process Clause requires the prosecution to bear the burden of proof on each essential element of a charged crime, a state cannot recharacterize a traditional element of an offense as an affirmative defense, thereby transferring the burden of proof to the defendant. E.g., Moss v. Superior Ct. (1998) 17 Cal.4th 396, 426 ("the state may not label as an affirmative defense a traditional element of an offense and thereby make a defendant presumptively guilty of that offense unless the defendant disproves the existence of that element"). Although California courts have not provided much guidance in determining which statutory provisions constitute an element of a criminal offense, the principal inquiry is whether the statutory content is so incorporated with and becomes a part of the enactment as to constitute part of the definition or description of the offense. See In re Andre R. (1st Dist.1984) 158 Cal.App.3d 336, 341-42 ("[i]t is the nature of the exception and not its location which determines the question"). If the statutory content does not define or describe the offense but instead affords a matter of excuse, the statutory content is not an element of the offense. Id. at 342; see, e.g., Neidinger, 40 Cal.4th at 75 (good-faith-belief requirement in Pen. C. §278.7(a) is an exception and not an element of offense under Pen. C. §278.5; phrase "does not apply" in statute created exception); People v. Mower (2002) 28 Cal.4th 457, 482 (D's status as patient or primary caregiver under Health & Safety Code §11362.5 is an exception and not an element of offense under Health & Safety Code §§11357 and 11358; phrase "shall not apply" in statute created exception).

[2] Defenses. The Due Process Clause does not prohibit a state from placing the burden of proving a defense on the defendant, as long as the defendant is not required to prove an affirmative defense that effectively negates an element of the offense (thereby shifting the prosecution's constitutional burden to prove each essential element of the crime). Martin v. Ohio (1987) 480 U.S. 228, 237-38 (Powell, J., dissenting); Neidinger, 40 Cal.4th at 72; see Patterson, 432 U.S. at 202 (historically, affirmative defenses and circumstances of justification, excuse, or alleviation rested on the defendant); see, e.g., Leland v. Oregon (1952) 343 U.S. 790, 798-99 (insanity is affirmative defense separate from elements of charged offense; thus, there is no violation of due process when D is allocated burden of proof); Conservatorship of E.B. (1st Dist.2020) 45 Cal.App.5th 986, 995 n.2 (pet. granted 6-24-20; No. S261812) (when presenting insanity defense, D has burden of proving insanity by preponderance of evidence). But see U.S. v. Gomez (9th Cir.2021) 6 F.4th 992, 1001 (government has the burden of...

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