§ 4.01  Introduction [43]

 

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.”

 

§ 4.02  Allocation of Burdens  [43-44]

 

In every case these two burdens are allocated, at least initially, to one of the parties on every issue in the case.  These two burdens, 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. 

 

§ 4.03  Burden of Persuasion  [44-49]

 

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); (2) “clear and convincing evidence” (an intermediate standard); and (3) “preponderance of evidence” (more probable than not).

 

§ 4.04  Burden of Production  [49-52]

 

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.  The judge (never the jury) determines whether this burden has been satisfied.  There are two possible adverse consequences if a party fails to satisfy its burden of production:  (1) the party may suffer a directed verdict, or (2) in the case of an affirmative defense, the jury may not be instructed on the defense.  Both consequences take the issue away from the jury.