Most people have heard of the term “burden of proof.” Often, this is from TV shows and movies. In this post, I’m going to go over two slight variants to burden of proof that lawyers often use and that most people probably have not heard of before — namely, the “burden of production” and the “burden of persuasion.” To some degree, all three burdens refer to the same thing, but lawyers often use burden of production and persuasion as those are more precise terms. I’m going to talk specifically about California and cite to California statutes, but these concepts are not California-specific. A same or similar type of discussion can, I think, be done in other US states also.
In broad terms, the “burden of proof” refers to which party has the obligation to prove the allegation in question. In California, the general rule is that the party that is asserting a claim or defense has the obligation to prove said claim or defense. In California, this rule is in section 500 of the California Evidence Code which provides:
Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.
This rule applies to all parties in a case. For example, in a criminal case, the prosecutor has the burden of proving the charges alleged, such as that the defendant robbed a bank. However, the defendant might try to defend himself by saying that he couldn’t have robbed the bank because at the time of the robbery, he was actually somewhere else (e.g. in the hospital, out of town completely, etc). If the defendant makes that claim, he has the burden of proving that he was actually in the hospital or out of town.
Furthermore, in a criminal case, many people have heard that the prosecutor has the burden of proving their case “beyond a reasonable doubt.” “Beyond a reasonable doubt” is also one of several degrees of “burden of proof”. You may have also heard of the term “proof by a preponderance of the evidence.” I’ll go over the difference between these degrees in a future post.
If you’re interested, the “burden of proof” in California state court is defined in section 115 of the California Evidence Code as follows:
“Burden of proof” means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court. The burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.
Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.
In law school, I was taught that the “burden of proof” is actually two more specific burdens — namely, the burden of production and the burden of persuasion. The “burden of production” refers to the obligation of a party to produce evidence that supports the claim or defense they are advancing. This should not be a surprise. I think most people understand that when it comes to a court case, they need to have evidence to prove what they’re saying. Evidence can, of course, take many forms, such as blood or DNA evidence, a witness, or a photograph or video tape. However, merely producing this evidence doesn’t actually prove anything. In a criminal case, for example, the prosecutor can’t simply go ‘Members of the jury, here’s my evidence that the defendant committed this crime’ and then recite a list of evidence. This is where the second burden — the burden of persuasion — comes in.
The “burden of persuasion” refers to the burden or obligation of the party who has produced the evidence in question to then argue, demonstrate, or explain why that evidence proves the claim or defense the party is advancing. If their evidence is subject to multiple possible interpretations, that party needs to explain why one interpretation is more correct than the others.
This is the part that most non-lawyers miss. In some situations, what the evidence proves is obvious. To use my bank robbery example from before, a video tape from a bank security camera clearly showing the defendant without a mask pointing a gun at a bank teller and then walking out with money would probably be obvious proof that the defendant robbed the bank. Most evidence, however, doesn’t speak for itself in such an obvious way which means the party producing it needs to explain why that evidence proves what they say it proves.
This explanation can take many forms. For example:
- If the evidence is scientific in nature (e.g. blood or DNA evidence), the party who is trying to use it might need to bring in an expert witness (e.g. a scientist, crime scene investigator, etc) to explain what that evidence shows, what the evidence doesn’t show, what the limits are of the test or equipment used, etc.
- If the evidence is a photograph or video, it’s possible that a witness will need to explain to the jury things such as what the video or photograph shows (e.g. “This is the intersection of Main Street and 1st Avenue in Modesto, California”) and where the camera was when the photograph or video was taken.
- If the evidence is a record of a prior conversation (e.g. an email, text message, etc), one of the participants might need to explain what specific terms and slang in the record mean.
Ideally, each party should produce evidence they believe supports their claim or defense and then argue persuasively to the judge or jury why that evidence supports their case or, alternatively, doesn’t support the other party’s case.
Lastly, if you’re interested, California has an explicit definition for “burden of producing evidence ” in section 110 of the California Evidence Code:
“Burden of producing evidence” means the obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue.
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