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Burden of Proof – Law 101

Hello, I’m attorney Kyle Bachus. The legal world is full of overly complicated jargon and terminology that can be intimidating if you don’t know what it means. In my law 101 video series, I’m breaking down some commonly used legal terms so you can be informed and confident should you ever need to take legal action.

In this episode of law 101, we’re going to break down the phrase burden of proof in the legal world, okay? Burden of proof in the legal world actually has two parts.

One is a burden to produce evidence. If you’re bringing a claim against somebody else, you, the person bringing the claim, has the burden to produce some evidence that the person who you’re bringing a claim against either breach the duty, caused harm to you or acted unreasonably, okay? That’s the burden of production of evidence. The second piece of burden of proof is the standard to be applied. This is a little bit more nuanced, but I think you’ll get it because I’m going to talk to you for a second about the burden of proof in a criminal case.

Not a civil case, but a criminal case. In a criminal case, the burden of proof is beyond a reasonable doubt; we’ve all heard it, right? Beyond a reasonable doubt. That means when evidence is presented in a criminal case, the prosecution has to prove each element of the case beyond a reasonable doubt in the minds of the jury in order to get a conviction. In a civil case, there is a burden of proof. But it is not beyond a reasonable doubt; it is a lower standard. The idea is that in a criminal case we’re taking away somebody’s life or liberty, going to put them in jail, right? So the highest possible burden of proof.

In a civil case, civil cases are about money, suing for money, so we have a lower burden of proof. It’s called a preponderance of the evidence. And what it really means is more likely true than not true, more likely true than not true, say 51% that might meet the civil burden of proof. And in fact, when we ask jurors to sit in a case that’s a civil case, a tort case for negligence, we have to ask them, are you comfortable making decisions in this trial knowing that the only level of proof is more likely true than not true.

If the plaintiff in a civil case demonstrates, it’s more likely true than not true to each element of the case; then, they win because their burden of proof is preponderance of the evidence, not beyond a reasonable doubt. At Bachus and Schanker, one of the things that we do is we represent people in civil cases, and we see, one, do we have that burden of proof from production of evidence, do we have enough evidence to go forward in the case?

And then, do we have enough evidence to prove our case by that preponderance of the evidence? If you have a question about your case, whether you have the evidence to bring a case, or whether you have the evidence to meet that burden, feel free to reach out to Bachus and Schanker, and we’re happy to talk to you about it personally. To learn more about other law topics that can help you feel informed and confident about the law, make sure to check out more videos in this series.

Legal Burden of Proof – FAQs

To win in court, you must prove your case using the buden of proof. This may have you wondering what exactly is it and how does it prove your case?

Whether learning about a personal legal case or studying in law school, it’s likely you’ll encounter the term burden of proof, which is different for different types of cases. Our personal injury lawyers explain this important legal term and how it applies to various kinds of legal proceedings.

The burden of proof is a legal standard used to determine who wins a lawsuit. It is a uniform rule that evaluates evidence and determines the winner of a case.

If you’re wondering who is the burden of proof on, it’s always the person who brings the lawsuit. The party that initiates the dispute must also provide evidence for their case.

For example, since the state files charges in criminal defense cases, the burden of proof lies with the state. In a civil claim for personal injury, the plaintiff files the case and must prove their right to compensation.

The burden of proof encompasses both the burden of production and the burden of persuasion1. If the burden is met by the initiating party, then the burden of proof is shifted to the defendant who has to provide a defense. The burden to produce evidence, also called onus of proof, can shift between parties throughout the proceedings.

The preponderance of evidence refers to a legal standard that means more likely than not. When the burden of proof in a legal matter is the preponderance of the evidence, the person deciding the case must determine whether the plaintiff’s theory is more likely than not to be true.

In other words, evidence of preponderance requires a 51% standard. If the judge or jury were to put all the evidence on the scales of justice – which way would the scales tip? If it is to the plaintiff’s side, then they have proved their case by a preponderance of evidence.

There are three main levels of proof:

  1. Preponderance of the evidence. When the plaintiff must prove their case by a preponderance of the evidence, they must prove that each element of the case is more likely than not to be true. It decides if the plaintiff can prove each component is more probable than not.
  2. Beyond a reasonable doubt. Beyond a reasonable doubt is based on common sense and that no sensible person could disagree with the evidence. It is not the same as having no doubt, but it is a higher standard of proof than the preponderance of the evidence. It is the point where there are no reasonable alternatives than for that theory of the case to be true.
  3. Clear and convincing. When a lawsuit must be proven by clear and convincing evidence, the plaintiff must show that the evidence establishes each element of the case. They must prove that their case is very likely to be true. Clear and convincing proof is a higher standard, and that standard requires belief beyond a reasonable doubt.

Burden of proof civil vs. criminal is different. A higher burden is required in a criminal lawsuit than in a civil suit. In a criminal case, the prosecutor has the burden of proof beyond a reasonable doubt. Burden of proof in a civil case is a preponderance of the evidence. A plaintiff might have sufficient evidence in a civil case even if a jury did not find the defendant guilty of criminal activity for the same events.

The burden is higher in a criminal case because criminal cases serve a different purpose than civil cases. In a criminal case, the defendant’s freedom is in jeopardy. The justice system doesn’t take that fact lightly.

The purpose of a civil case is to hold the defendant accountable and pay the victim compensation when appropriate. The differing standards consider the purpose of each proceeding and what is necessary to achieve justice in each type of case.

In an insurance claim, the plaintiff has the burden of proof. They must show their right to compensation based on the insurance policy and the claim’s facts.

The lowest burden of proof is the preponderance of the evidence. It means that something is more likely than not to be true.

The burden of proof in a preliminary hearing is probable cause.2 The burden evaluates whether a person could reasonably think that a crime occurred. The purpose of a preliminary hearing is not to establish guilt or innocence but to protect a defendant from unfounded or baseless criminal charges.

Proof beyond a reasonable doubt means enough evidence is produced for a sensible person to conclude that something is true. It means there is a moral certainty that something is accurate, and a reasonable person couldn’t disagree. It doesn’t eliminate all doubt, just that the only reasonable answer is that the party with the burden proved their case.

A party may not need to provide any evidence to create reasonable doubt. In other cases, available evidence may not be able to formulate reasonable doubt. It depends on the strength of the plaintiff’s case, witness testimonies, and the amount of evidence provided. A defendant may defend a case by presenting their own evidence or by questioning the plaintiff’s evidence.

Clear and convincing evidence refers to pieces of information or facts and proof is the logical conclusion derived from studying the evidence. Understanding burden of proof gathering evidence requires knowledge of the law and those types of cases. Contact us today and let us navigate the claims process for you to help you get the justice you deserve.


1Legal Information Institute. Burden of PersuasionCornell Law School. Retrieved 31 January 2022.

2Legal Information Institute. Probable CauseCornell Law School. Retrieved 31 January 2022.