# 1.5: The Burden of Proof

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One significant difference between civil litigation and criminal prosecution is the burden of proof necessary to hold the defendant responsible for his or her conduct. A failure to meet the burden of proof means that the plaintiff or prosecutor loses their case. In this section, you learn the burden of proof for the plaintiff, prosecution, and defendant. We will also explore different types of evidence and evidentiary rules that can change the outcome of a trial.

## Definition of the Burden of Proof

The burden of proof is a party’s responsibility to prove a disputed charge, allegation, or defense. The burden of proof has two components: the burden of production and the burden of persuasion. The burden of production is the obligation to present evidence to the judge or jury. The burden of persuasion is the duty to convince the trier of fact, the judge or jury, to a certain standard, such as beyond a “reasonable doubt.” This standard is simply a measuring point and is determined by examining the quantity and quality of the evidence presented. “Meeting the burden of proof” means that a party has introduced enough compelling evidence to satisfy the standard defined in the burden of persuasion.

The plaintiff or prosecutor generally has the burden of proving the case, which means they must prove each essential element of a crime. Under some circumstances, the defendant may have the burden of proving the existence of a defense. The trier of fact determines whether a party met the burden of proof at trial. The trier of fact would be a judge in a nonjury or bench trial. In a criminal case, the trier of fact is almost always a jury because of the right to a jury trial in the Sixth Amendment. Jurors are not legal experts, so the judge must explain the burden of proof through jury instructions.

## Burden of Proof in a Civil Case

In most civil lawsuits, a plaintiff must prove the defendant committed the alleged act by a preponderance of the evidence. A preponderance of evidence simply means something is more likely true than not true. See Alaska Civil Pattern Jury Instruction 02.04. The law refers to something is more likely true than not true if the jury believes that “there is a greater than 50 percent chance that it is true.” Thus, if the jury believes that something is 51% likely, then the jury is entitled to find in favor of the plaintiff. A preponderance of evidence is a fairly low standard, but the plaintiff must still produce more and better evidence than the defense. If the plaintiff offers evidence of questionable quality, the judge or jury can find that the burden of proof is not met and the plaintiff loses the case.

The defendant’s burden of proof when proving a defense in a civil case is also a preponderance of evidence. For example, in the O. J. Simpson civil case discussed in the previous section, O. J. Simpson failed to meet the burden of proving the defense of alibi. The defendant does not always have to prove a defense in a civil case. If the plaintiff does not meet the burden of proof, the defendant is victorious without having to present any evidence at all.

## Burden of Proof in a Criminal Prosecution

Criminal prosecution requires a much higher burden of proof. In a criminal trial, the government must prove each essential element beyond a reasonable doubt. It is impossible to put a mathematical equation on this phrase. What constitutes proof beyond a reasonable doubt is evidence that is sufficiently trustworthy and overcomes “any reasonable doubt about the defendant’s guilt.” Proof beyond a reasonable doubt is not proof of an absolute certainty. Instead, it is a firm, unwavering belief in the defendant’s guilt. Judges have struggled with the phrase for decades. As Chief Judge Mannheimer of the Alaska Court of Appeals recently stated,

The concept of proof “beyond a reasonable doubt” may be familiar to lawyers and judges, but even lawyers and judges would concede that this phrase is not self-explanatory. Because the phrase “beyond a reasonable doubt” does not have a universally understood meaning, the Alaska committee on criminal pattern jury instructions developed Criminal Pattern Jury Instruction 1.06 to explain this concept to jurors.

Roberts v. State, 394, P.3d 639, 643 (Alaska App. 2017). The current pattern jury instruction provides, in relevant part,

What is a reasonable doubt? It is a doubt in your mind about the defendant’s guilt that arises from the evidence presented, or from a lack of evidence. A reasonable doubt is based on reason and common sense. A defendant must never be found guilty based on mere suspicion, speculation, or guesswork.

What is proof beyond a reasonable doubt? It is the highest level of proof in our legal system. It is not enough that you believe a defendant is probably or likely guilty or even that the evidence shows a strong probability of guilt; the law requires more. Proof beyond a reasonable doubt is proof that overcomes any reasonable doubt about the defendant’s guilt.

The prosecution is not required to prove guilt beyond all possible doubt, for it is rarely possible to prove anything to an absolute certainty. If, after careful and impartial consideration of the evidence and the law, you do not have a reasonable doubt, then you must find the defendant guilty. If, on the other hand, you think the prosecution did not prove every element of the offense charged beyond a reasonable doubt, then you must find the defendant not guilty.

The law uses numerous burdens of proof, depending on the circumstance. For example, a search warrant may only be issued upon a finding of probable cause that evidence of a crime will be found in the place to be searched. A person suspected of a crime may only be searched for weapons if police have reasonable suspicion that the suspect is armed and dangerous. Finally, before the government may terminate parental rights, the government must demonstrate by clear and convincing evidence that the parent is a danger to the child. While we won’t spend a significant amount of time exploring these different burdens, it is important to remember that all criminal defendants are presumed innocent until the government proves the defendant guilty beyond a reasonable doubt. See in re Winship, 397 U.S. 364 (1970). The U.S. Constitution guarantees the presumption of innocence as a central component of due process of law. If even a slight chance exists that the defendant is innocent, the case most likely lacks convincing and credible evidence, and the jury should acquit the defendant.

Figure 1.4 Diagram of the Spectrum of Certainty

Although as a general rule, the burden in a criminal case rests with the prosecution, under some circumstances, the defendant may have the burden when asserting certain criminal defenses. This occurs in two situations. First, when the defendant raises a defense called an affirmative defense, the defendant must prove the defense by a preponderance of the evidence. See e.g., Alaska Statute 11.81.900(b)(2). Second, when a defendant raises a defense, the defendant must meet the burden of production. For example, Alaska describes this circumstance as requiring the defendant to produce “some evidence” of self-defense before arguing that he was justified in using force against another person. this is a very low threshold. Once the defendant meets his burden of production, the prosecution is then required to meet the burden of persuasion by disproving the defense beyond a reasonable doubt. If the prosecution does not meet its burden of proof, the defendant must be acquitted without having to present any evidence at all. Other states have similar rules, although they may require different burdens of proof under their own rules.

## Example of a Failure to Meet the Burden of Proof

Ann is on trial for first-degree murder. The only key piece of evidence in Ann’s trial is the murder weapon, which was discovered in Ann’s dresser drawer during a law enforcement search. Before Ann’s trial, the defense makes a motion to suppress the murder weapon evidence because the search warrant in Ann’s case was signed by a judge who was inebriated and mentally incompetent. The defense is successful with this motion, and the judge rules that the murder weapon is inadmissible at trial. The prosecution decides to proceed anyway. If there is no other convincing and credible evidence of Ann’s guilt, Ann does not need to put on a defense in this case. The prosecution will fail to meet the burden of proof and Ann will be acquitted. The jury must begin its deliberations with the presumption that Ann is innocent of the murder charge.

## Direct and Circumstantial Evidence

Evidence is information that is used to prove or disprove a disputed fact. This is true in all types of law. The purpose of evidence is to ascertain the truth. To this end, the law uses two primary classifications to describe evidence: direct evidence and circumstantial evidence. Both direct and circumstantial evidence are valid methods of proving a disputed fact. The law does not treat either type of evidence as more powerful than the other.

Direct evidence proves a fact based on personal knowledge or observation. For example, eyewitness testimony is often direct evidence. An eyewitness testifying that he or she saw the defendant commit the crime directly proves that the defendant committed the crime. Common examples of direct evidence are eyewitness testimony, a defendant’s confession, or a video or photograph of the defendant committing the crime. Criminal cases relying on direct evidence are easier to prove because the trier-of-fact generally believes direct evidence is more reliable (i.e., accurate). However, direct evidence can be unreliable and is not necessarily preferable to circumstantial evidence. For example, if an eyewitness is mistaken in their identification, the witness’s testimony lacks the evidentiary value of reliable circumstantial evidence such as DNA evidence.

Circumstantial evidence, conversely, proves a fact through inference and not on personal knowledge or inference. Fingerprint evidence is usually circumstantial. The defendant’s fingerprint at the scene of the crime directly proves that the defendant placed a fingerprint at that location. It indirectly proves that the defendant was present at the scene during the time of the crime. Common examples of circumstantial evidence are fingerprint evidence, DNA evidence, and blood evidence. Criminal cases relying on circumstantial evidence are viewed as more difficult for the prosecution because circumstantial evidence does not directly tie the defendant to the criminal act. However, circumstantial evidence such as DNA evidence can be very powerful and compelling.

Both direct evidence and circumstantial evidence can be true or false – that is, the believability of evidence is not determined by its classification. Both direct and circumstantial evidence are valid methods of proving a disputed fact. The law does not treat either type of evidence as more powerful than the other. It is the trier of fact (e.g., the judge or jury) that interprets and weighs the evidence.

Table 1.2 – Comparison of Circumstantial and Direct Evidence in a Burglary Case

Evidence Circumstantial Direct
Fiber from the defendant’s coat found in a residence that has been burglarized Yes No—directly proves presence at the scene, not that the defendant committed burglary
GPS evidence indicating the defendant drove to the burglarized residence Yes No—same explanation as fiber evidence
Testimony from an eyewitness that she saw the defendant go into the backyard of the burglarized residence Yes No—could prove trespassing because it directly proves presence at the scene, but it does not directly prove burglary
Surveillance camera footage of the defendant purchasing burglar tools Yes No—does not directly prove they were used on the residence
Cell phone video of the defendant burglarizing the residence No Yes—directly proves that the defendant committed the crime
Witness testimony that the defendant confessed to burglarizing the residence No Yes—directly proves that the defendant confessed to the crime
Pawn shop receipt found in the defendant’s pocket for items stolen from the residence Yes No—directly proves that the items were pawned, not stolen

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