Burdens of Proof

Part two, burdens of proof.

Before we leap into figuring out what evidence is admissible, we have to get a few procedural matters out of the way. Namely, you should know how a court decides which evidence will come in and for what reason. First, let's talk about burdens of proof, who needs to put on evidence, and how much evidence they need to show to the judge or jury to decide in their favor.

Who Bears the Burden

In a civil trial, the burden is on the plaintiff to prove the claim. In a criminal trial, the burden is on the government. There are limited exceptions to these rules such as affirmative defenses. So where a defendant argues insanity, necessity, intoxication, or self-defense, or the defense in a civil case argues that a statute of limitations has run out, it becomes the defendant's burden to prove those defenses. Otherwise, the burden is wholly on the plaintiff in a civil case and the prosecution in a criminal case. Indeed, the defense in a criminal case need not do anything at all and still win if the prosecution doesn't meet its burden.

Levels of Burden

preponderance

There are three levels of burden the parties must meet in order to prove their case. The first is the usual standard in a civil case, which is preponderance of the evidence. This is where the party with the burden on a given claim convinces the fact-finder that there's a greater than 50% chance that the claim is true. That's preponderance of the evidence and that's the lowest level.

clear and convincing

The medium-level burden is clear and convincing evidence, which means that the evidence is highly and substantially more likely to be true than untrue. That is, that it's highly probable. This is usually reserved for criminally related civil trials like fraud, or determining the validity of a will, or whether a person is insane. That's the medium-level burden called clear and convincing evidence.

beyond reasonable doubt

The highest burden of proof is the standard in criminal cases, that is, beyond a reasonable doubt. This standard is met when there is no other reasonable explanation that can come from the evidence presented at trial. In other words, the jury must be virtually certain of the defendant's guilt. The jury, or the judge in a bench trial, must decide whether the burden of proof has been met for each element of the charge, claim, or defense.

overview

Again, in increasing order, the three levels of burdens of proof are: first, preponderance of the evidence, which means more likely than not; next is clear and convincing evidence, which means highly likely; and last and the highest burden is beyond a reasonable doubt, which means that there is no reasonable explanation for what occurred other than that the defendant did it.

Admissibility

Juries aren't the only ones bound by a standard of proof, however, judges are, too. For example, in a jury trial the judge will decide whether to admit a given piece of evidence and make that decision based on the preponderance of the evidence standard. The judge here is making a decision about the question of what's called admissibility, whether or not it should be admitted.

For example, a judge is deciding whether a communication is privileged under the psychotherapist-patient privilege, which we'll talk about later. If the privilege applies, the judge will refuse to admit the evidence. The jury won't even get to hear it. If it's not privileged, the jury will hear it. To make the determination, the judge hears evidence on whether the therapist was licensed at the time of the communication, for example, or whether the communication was made for the purpose of medical treatment.

The judge will then decide, based on the preponderance of the evidence, whether those things are true and, therefore, whether the communication is admissible.

juries weigh the evidence

If the judge decides to admit the evidence, the jury will then decide its weight or how much credence to give it. And if it's a criminal case, decide whether the prosecution has met its burden of proof based on a different standard of proof, of course, and that is beyond a reasonable doubt. For any given piece of evidence, the judge decides the admissibility and the jury decides the weight.

Presumptions

Sometimes no proof is needed at all to prove a fact. These facts are called presumptions. For example, if there's evidence to show that a letter was mailed, a court may presume that it arrived at its destination. Courts may presume, for example, that a child born to a husband and wife who are living together is a product of that husband and wife. Someone who has been missing for seven years may be presumed dead.

types of presumptions

There are two types of presumptions, rebuttable presumptions, sometimes called a permissive presumption, and a conclusive presumption, sometimes called a mandatory presumption. A rebuttable presumption is assumed true until a person proves otherwise, for example, the presumption of innocence. In contrast, a conclusive or mandatory presumption cannot be refuted by any facts. For example, a child of 10 could be subject to a mandatory presumption of being a minor in the eyes of the law, even if the prosecutor presents lots of evidence that she's a very mature 10-year-old.

Mandatory presumptions are not allowed in criminal cases, where all elements of the crime must be proved beyond a reasonable doubt. You'll never find a judge telling a jury that a defendant is presumed to have acted with malice or presumed to have the mental capacity to commit the crime.

Review

Let's go back and have a quick multiple choice review. Which is the highest burden of proof? A, beyond a reasonable doubt; B, preponderance of the evidence; C, clear and convincing evidence; or D, more likely than not. The answer is A, beyond a reasonable doubt, which is used for criminal trials. B, preponderance of the evidence and D, more likely than not, which actually isn't a legal burden of proof, mean the same thing, over 50% likely, which is used, as you remember, in most civil cases and evidentiary determinations.

C, clear and convincing evidence, is a higher standard used in certain civil trials like fraud and other criminal type civil charges. The answer is A, beyond a reasonable doubt, the highest burden of proof.