Types of burden The first attempt to quantify reasonable doubt was made by Simon [clarification

needed] in 1970. In the attempt, she presented a trial to groups of students. Half
There are generally two broad types of burdens:
of the students decided the guilt or innocence of the defendant. The other half
A "legal burden" or a "burden of persuasion" is an obligation that remains
recorded their perceived likelihood, given as a percentage, that the defendant
on a single party for the duration of the claim. Once the burden has been entirely
committed the crime. She then matched the highest likelihoods of guilt with the
discharged to the satisfaction of the trier of fact, the party carrying the burden
guilty verdicts and the lowest likelihoods of guilt with the innocent verdicts.
will succeed in its claim. For example, the presumption of innocence places a
From this, she gauged that the cutoff for reasonable doubt fell somewhere
legal burden upon the prosecution to prove all elements of the offence (generally
between the highest likelihood of guilt matched to an innocent verdict and the
beyond a reasonable doubt) and to disprove all the defences except for
lowest likelihood of guilt matched to a guilty verdict. From these samples,
affirmative defenses in which the proof of nonexistence of all affirmative
Simon concluded that the standard was between 0.70 and 0.74.[2]
defence(s) is not constitutionally required of the prosecution.[1]
Standards for searches, arrests or warrants
An "evidentiary burden" or "burden of leading evidence" is an obligation
that shifts between parties over the course of the hearing or trial. A party may Reasonable suspicion
submit evidence that the court will consider prima facie evidence of some state Reasonable suspicion is a low standard of proof in the U.S. to determine
of affairs. This creates an evidentiary burden upon the opposing party to present whether a brief investigative stop or search by a police officer or any
evidence to refute the presumption. government agent is warranted. It is important to note that this stop and/or

Standard of proof search must be brief; its thoroughness is proportional to, and limited by, the
low standard of evidence. A more definite standard of proof (often probable
The "standard of proof" is the level of proof required in a legal action to
cause) would be required to warrant a more thorough stop/search. In Terry
discharge the burden of proof, which is to convince the court that a given
v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court ruled that
proposition is true. The degree of proof required depends on the circumstances
reasonable suspicion requires specific, articulable, and individualized
of the proposition. Typically, most countries have two levels of proof or the
suspicion that crime is afoot. A mere guess or "hunch" is not enough to
balance of probabilities: preponderance of evidence - (lowest level of proof,
used mainly in civil trials) beyond a reasonable doubt - (highest level of proof, constitute reasonable suspicion.

used mainly in criminal trials) Probable cause for arrest

In addition to these, the U.S. introduced a third standard called clear and
convincing evidence, which is the medium level of proof, used, for example, in
cases in which the state seeks to terminate parental rights.
Main article: Probable cause
Probable cause is a relatively low standard of evidence, which is used in the
United States to determine whether a search, or an arrest, is warranted. It is
also used by grand juries to determine whether to issue an indictment. In the
 civil context, this standard is often used where plaintiffs are seeking a Preponderance of the evidence
prejudgment remedy.
Preponderance of the evidence, also known as balance of probabilities is the
In the criminal context, the U.S. Supreme Court in United States v. Sokolow,
standard required in most civil cases. The standard is met if the proposition is
490 U.S. 1 (1989), determined that probable cause requires "a fair probability
more likely to be true than not true. Effectively, the standard is satisfied if
that contraband or evidence of a crime will be found" in determining whether
there is greater than 50 percent chance that the proposition is true. Lord
Drug Enforcement Administration agents had a reason to execute a search.
Denning, in Miller v. Minister of Pensions, [3] described it simply as "more
Courts vary when determining what constitutes a "fair probability," some say
probable than not."
30%, others 40%, others 51%.
Clear and convincing evidence
A good illustration of this evidence/intrusiveness continuum might be a
Clear and convincing evidence is the higher level of burden of persuasion
typical police/citizen interaction. Consider the following three interactions:
sometimes employed in the U.S. civil procedure. To prove something by
→no level of suspicion required: a consensual encounter between officer and
"clear and convincing evidence", the party with the burden of proof must
citizen
convince the trier of fact that it is substantially more likely than not that the
→reasonable suspicion required: a stop initiated by the officer that would
thing is in fact true. This is a lesser requirement than "proof beyond a
cause a reasonable person to feel that he or she is not free to leave
reasonable doubt", which requires that the trier of fact be close to certain of
→probable cause required: arrest.
the truth of the matter asserted, but a stricter requirement than proof by
Standards for presenting cases or defenses "preponderance of the evidence," which merely requires that the matter
Air of reality asserted seem more likely true than not.
The "air of reality" is a standard of proof used to determine whether a criminal
Beyond reasonable doubt
defense may be used. The test asks whether a defense can be successful if it is
Main article: Reasonable doubt. This section may contain original research or
assumed that all the claimed facts are to be true. In most cases, the burden of
unverified claims. Please improve the article by adding references. See the
proof rests solely on the prosecution, negating the need for a defense of this
talk page for details. (September 2008)
kind. However, when exceptions arise and the burden of proof has been
This is the standard required by the prosecution in most criminal cases within
shifted to the defendant, he is required to establish a defense that bears an "air
an adversarial system and is the highest level of burden of persuasion. This
of reality." Two instances in which such a case might arise are, first, when a
means that the proposition being presented by the government must be proven
prima facie case has been made against the defendant or, second, when the
to the extent that there is no "reasonable doubt" in the mind of a reasonable
defense mounts an affirmative defense, such as the insanity defense.
person that the defendant is guilty. There can still be a doubt, but only to the
Standards for conviction
extent that it would not affect a "reasonable person's" belief that the defendant
is guilty. If the doubt that is raised does affect a "reasonable person's" belief “What is a reasonable doubt?” Jury instructions typically say that a
that the defendant is guilty, the jury is not satisfied beyond a "reasonable reasonable doubt is a doubt based on reason and common sense and typically
doubt". The precise meaning of words such as "reasonable" and "doubt" are use phrases such as “fully satisfied” or “entirely convinced” in an effort to
usually defined within jurisprudence of the applicable country. quantify the standard of proof.[10] These efforts tend to create more problems
than they solve. For example, take the phrases “fully satisfied” and “entirely
What is the burden of proof? First, we must address the meaning of the
convinced.” A person is satisfied when she is content, pleased, happy,
word “burden.” Most often[citation needed] jurors interpret this word as
comfortable or at ease. The fellow leans back in his chair after a meal, pats his
meaning weight. Jurors picture the state in the person of the prosecutor with a
stomach and says, “that was one satisfying meal.” Is that what the state must
massive object on his back attempting to carry it up some incline for some
do - offer sufficient proof that a juror is content, happy, pleased or
distance– defense attorneys have been heard to say that the state has a “heavy
comfortable with her verdict. Absolutely not. A juror is not required to be
burden.” The word “burden” has nothing to do with weight, mass or any other
pleased with the verdict or happy with the verdict. The state is not required to
physical properties – the word simply means responsibility. It is the state’s
produce sufficient evidence to eliminate all reasonable doubt AND to please
responsibility to prove the defendant’s guilt. It has nothing to do with the
the juror or to eliminate all reservations about whether the juror has done the
degree or intensity of proof. Who has to prove the defendant’s guilt? The State
right thing. “Satisfied” in the phrase “fully satisfied” simply means convinced.
does. To what degree must guilt be proven? Beyond a reasonable doubt. What
[11]. Likewise the modifiers "entirely" and "fully" do not mean that you have
does that mean? Again the problem is with words being used in an abnormal
to be 100 percent certain of the defendant’s guilt. The standard of proof is not
or special way. The word “beyond” normally means farther than or more than.
absolute certainty. A juror is "fully satisfied" or "entirely convinced" when the
[4] Clearly this is not the meaning of the word in the phrase “beyond a
state had eliminated all reasonable doubt.
reasonable doubt.” The state does not have to “carry its burden” beyond some
point that constitutes reasonable doubt. The state certainly is not trying to Jury instructions often state that a reasonable doubt can arise from the "lack or

prove that there is more than a reasonable doubt.[5]If anything the state’s insufficiency of the evidence." This phrase is rich with possibilities for

responsibility is to prove that there is less than a reasonable doubt.[6] The concocting doubt – Where are the fingerprints? Where is the DNA evidence?

word “beyond” in the phrase beyond a reasonable doubt means “to the Where are the other officers who assisted with the arrest? These arguments

exclusion of.”[7] That is the state must exclude any and all reasonable doubt invite, actually require that the jury engage in speculation – something a jury

as to the defendant’s guilt. Simply put, the phrase means that if a juror has a is specifically instructed not to do. An example, a person enters a store. The

reasonable doubt it is her duty to return a verdict of not guilty.[8] On the other clerk who is talking to her friend on the telephone sees the man. She tells her

hand, if a juror does not have a reasonable doubt then the state has met its friend that the man appeared to be casing the place and asks her friend to call

burden of proof and it is the juror’s duty to return a verdict of guilty.[9] the police. A few minutes later the man leaves the store, walks to his car,
opens the trunk, and retrieves a ski-mask and a shotgun. The man dons the
mask, re-enters the store and tells the clerk to give it up. The clerk does as she
is told and put the contents of the till into a bag which she hands to the man.
The man then leaves the store. As he is running to his car the police arrive.
The man flees from the scene with the police officers in hot pursuit. As he
runs the man tosses the bag, gun and mask. He is caught shortly thereafter,
returned to the store and is positively identified by the clerk as the man who
cased the store and then robbed her. The bag is retrieved and the money in the
bag exactly matches to the penny the amount taken from the register. At the
trial, the defense attorney asks the lead investigator whether hair samples were
taken from the mask and submitted to the lab for analysis. The investigator
says no. During closing arguments the defense attorney conveniently ignores
all the evidence of guilt and pounds away at the sloppy investigation and
argues that had the hair analysis could have provided the jury with "irrefutable
evidence" of the defendant's guilt or innocence. Is the absence of the hair
evidence what the phrase “lack of insufficiency of the evidence” refers to. No.
The phrase refers to the convincing force of the evidence presented. The
presence or absence of reasonable doubt is to be determined by the evidence
presented at trial not what might have been presented. There is a standard
objection- Calls for speculation – that is exactly what the defense attorney is
asking the jury to do, to speculate. Not simple speculation but a series of
"what ifs." What if a hair sample had been found, what if the hair sample had
been sent to the lab for DNA analysis, what if he DNA profile had not
“matched” the defendant’s. What if + what if + what if = reasonable doubt.
Remember that the state’s duty is to eliminate any reasonable doubt, any
logical explanation that arises from the evidence. The defense's argument is
not a proper argument. It is a “tool of logical inversion”[12] All the evidence
would compel one to say the defendant is guilty. However, the defendant
wants the jurors to think, "but still there is that missing hair analysis evidence.
I wonder what that would have shown?" A jury properly draw conclusion
based on the evidence and inferences drawn from the evidence. The strength
of the conclusions is based on the persuasive force of the evidence. With one
exception, "Lack or insufficiency" refers to the convincing force of the
evidence presented. The exception is the missing witness rule.
The missing witness rule is:
"The failure to call a witness raises a presumption of inference that the
testimony of such person would be unfavorable to the party failing to call him,
but there is no such presumption or inference where the witness is not
available, or where his testimony is unimportant or cumulative, or where he is
equally available to both sides."[13]
"The reasonable-doubt standard plays a vital role in the American scheme of
criminal procedure. It is a prime instrument for reducing the risk of
convictions resting on factual error. The standard provides concrete substance
for the presumption of innocence – that bedrock "axiomatic and elementary"
principle whose "enforcement lies at the foundation of the administration of
our criminal law."[14] . Proof beyond a reasonable doubt did not become the
accepted standard in criminal cases until the middle of the nineteenth century.
[15] Proof beyond a reasonable doubt was not the standard by which guilt was
determined when the Bill of Rights was drafted in 1789.[16] This may explain
the absence of the phrase in the constitution. Nor was it an element of due
process.
Attempts to quantify the burden of proof are exercises in futility. It is more a
qualitative than quantitative concept. As Rembar notes, "Proof beyond a
reasonable doubt is a quantum without a number."[17]
Non-legal Standards
Beyond the shadow of a doubt
Main article: Beyond the shadow of a doubt
Beyond the shadow of a doubt is the most strict standard of proof. It requires
that there be no doubt as to the issue. Widely considered an impossible
standard, a situation stemming from the nature of knowledge itself, it is
valuable to mention only as a comment on the fact that evidence in a court
never need reach this level. This phrase, has, nonetheless, come to be
associated with the law in popular culture.
Examples
Criminal law
In the West, criminal cases usually place the burden of proof on the prosecutor
(expressed in the Latin brocard ei incumbit probatio qui dicit, non que negat,
"the burden of proof rests on who asserts, not on who denies"). This principle
is known as the presumption of innocence, and is summed up with "innocent
until proven guilty," but is not upheld in all legal systems or jurisdictions.
Where it is upheld, the accused will be found not guilty if this burden of proof
is not sufficiently shown by the prosecution.
For example, if the defendant (D) is charged with murder, the prosecutor (P)
bears the burden of proof to show the jury that D did murder someone.
Burden of proof: P
Burden of production: P has to show some evidence that D had committed
murder. The United States Supreme Court has ruled that the Constitution
requires enough evidence to justify a rational trier of fact to find guilt beyond
a reasonable doubt. If the judge rules that such burden has been met, then of
course it is up to the jury itself to decide if they are, in fact, convinced of
guilty beyond a reasonable doubt.[18] If the judge finds there is not enough
evidence under the standard, the case must be dismissed (or a subsequent
guilty verdict must be vacated and the charges dismissed). e.g. witness,
forensic evidence, autopsy report Failure to meet the burden: the issue will be
decided as a matter of law (the judge makes the decision), in this case, D is
presumed innocent
Burden of persuasion: if at the close of evidence, the jury cannot decide if
P has established with relevant level of certainty that D had committed
murder, the jury must find D not guilty of the crime of murder
Measure of proof: P has to prove every element of the offence beyond a
reasonable doubt, but not necessarily prove every single fact beyond a
reasonable doubt.
In other countries, criminal law reverses the burden of proof, and there is a
presumption of guilt.
However, in England and Wales, the Magistrates' Courts Act 1980, s.101
stipulates that where a defendant relies on some "exception, exemption,
proviso, excuse or qualification" in his defence, the legal burden of proof as to
that exception falls on the defendant, though only on the balance of
probabilities. For example, a person charged with being drunk in charge of a
motor vehicle can raise the defence that there was no likelihood of his driving
while drunk.[19] The prosecution have the legal burden of proof beyond
reasonable doubt that the defendant exceeded the legal limit of alcohol and
was in control of a motor vehicle. Possession of the keys is usually sufficient
to prove control, even if the defendant is not in the vehicle and is perhaps in a
nearby bar. That being proved, the defendant has the legal burden of proof on
the balance of probabilities that he was not likely to drive.[20]
Similar rules exist in trial on indictment. Some defences impose an evidential
burden on the defendant which, if met, imposes a legal burden on the
prosecution. For example, if a person charged with murder pleads the right of
self-defense, the defendant must satisfy the evidential burden that there are
some facts suggesting self-defence. The legal burden will then fall on the
prosecution to prove beyond reasonable doubt that the defendant was not
acting in self-defence.[20]
In 2002, such practice in England and Wales was challenged as contrary to the
European Convention on Human Rights (ECHR), art.6(2) guaranteeing right
to a fair trial. The House of Lords held that such burdens were not contrary to
the ECHR:[20][21]
A mere evidential burden did not contravene art.6(2); A legal/ persuasive
burden did not necessarily contravene art.6(2) so long as confined within
reasonable limits, considering the questions:
What must the prosecution prove to transfer burden to the defendant?
Is the defendant required to prove something difficult or easily within his
access?
What is threat to society that the provision is designed to combat?
Civil law
In civil law cases, the "burden of proof" requires the plaintiff to convince the
trier of fact (whether judge or jury) of the plaintiff's entitlement to the relief
sought. This means that the plaintiff must prove each element of the claim, or
cause of action, in order to recover.
The burden of proof must be distinguished from the "burden of going
forward," which simply refers to the sequence of proof, as between the
plaintiff and defendant. The two concepts are often confused.
Decisions by the U.S. Supreme Court
In Keyes v. Sch. Dist. No. 1, 413 U.S. 189 (1973), the United States Supreme
Court stated: “There are no hard-and-fast standards governing the allocation
of the burden of proof in every situation. The issue, rather, ‘is merely a
question of policy and fairness based on experience in the different
situations.’” For support, the Court cited 9 John H. Wigmore, Evidence §
2486, at 275 (3d ed. 1940). In Keyes, the Supreme Court held that if “school
authorities have been found to have practiced purposeful segregation in part of
a school system,” the burden of persuasion shifts to the school to prove that it
did not engaged in such discrimination in other segregated schools in the same
system.
In Director, Office of Workers’ Compensation Programs v. Greenwich
Collieries, 512 U.S. 267 (1994), the Supreme Court explained that burden of
proof is ambiguous because it has historically referred to two distinct burdens:
the burden of persuasion, and the burden of production.
The Supreme Court discussed how courts should allocate the burden of proof
(i.e., the burden of persuasion) in Schaffer ex rel. Schaffer v. Weast, 546 U.S.
49 (2005). The Supreme Court explained that if a statute is silent about the
burden of persuasion, the court will “begin with the ordinary default rule that
plaintiffs bear the risk of failing to prove their claims.” In support of this
proposition, the Court cited 2 J. Strong, McCormick on Evidence § 337, 412
(5th ed. 1999), which states:
The burdens of pleading and proof with regard to most facts have been and
should be assigned to the plaintiff who generally seeks to change the present
state of affairs and who therefore naturally should be expected to bear the risk
of failure of proof or persuasion.
At the same time, the Supreme Court also recognized “The ordinary default
rule, of course, admits of exceptions.” “For example, the burden of persuasion
as to certain elements of a plaintiff's claim may be shifted to defendants, when
such elements can fairly be characterized as affirmative defenses or
exemptions. See, e.g., FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948).
Under some circumstances this Court has even placed the burden of
persuasion over an entire claim on the defendant. See Alaska Dept. of
Environmental Conservation v. EPA, 540 U.S. 461 (2004).” Nonetheless,
“[a]bsent some reason to believe that Congress intended otherwise, therefore,
[the Supreme Court] will conclude that the burden of persuasion lies where it
usually falls, upon the party seeking relief.”

Science and other uses

Outside a legal context, "burden of proof" means that someone suggesting a

new theory or stating a claim must provide evidence to support it: it is not
sufficient to say "you can't disprove this." Specifically, when anyone is
making a bold claim, either positive or negative, it is not someone else's
responsibility to disprove the claim, but is rather the responsibility of the
person who is making the bold claim to prove it. In short, X is not proven
simply because "not X" cannot be proven (see negative proof).
Taken more generally, the standard of proof demanded to establish any
particular conclusion varies with the subject under discussion. Just as there is
a difference between the standard required for a criminal conviction and in a
civil case, so there are different standards of proof applied in many other areas
of life.
The less reasonable a statement seems, the more proof it requires. The
scientific consensus on cold fusion is a good example. The majority believes
this can not really work, because believing that it would do so would force the
alteration of a great many other tested and generally accepted theories about
nuclear physics.