BURDEN OF PROOF

A duty placed upon a civil or criminal defendant to prove or disprove a disputed fact.

Burden of proof can define the duty placed upon a party to prove or disprove a disputed
fact, or it can define which party bears this burden. In criminal cases, the burden of proof
is placed on the prosecution, who must demonstrate that the defendant is guilty before a
jury may convict him or her. But in some jurisdiction, the defendant has the burden of
establishing the existence of certain facts that give rise to a defense, such as the insanity
plea. In civil cases, the plaintiff is normally charged with the burden of proof, but the
defendant can be required to establish certain defenses.

Burden of proof can also define the burden of persuasion, or the quantum of proof by
which the party with the burden of proof must establish or refute a disputed factual issue.
In criminal cases, the prosecution must prove the defendant's guilt Beyond a Reasonable
Doubt.

Judges explain the reasonable doubt standard to jurors in a number of ways. Federal jury
instructions provide that proof beyond a reasonable doubt is "proof of such a convincing
character that a reasonable person would not hesitate to act upon it in the most important
of his own affairs." State judges typically describe the standard by telling jurors that they
possess a reasonable doubt as to the defendant's guilt if, based on all the evidence in the
case, they would be uncomfortable with a criminal conviction. In giving the reasonable
doubt instruction, judges regularly remind jurors that a criminal conviction imposes a
variety of hardships on a defendant, including public humiliation, incarceration, fines,
and occasionally the Forfeiture of property. Reasonable doubt is the highest standard of
proof used in any judicial proceeding.

Reasonable doubt is also a constitutionally mandated burden of proof in criminal

proceedings. The U.S. Supreme Court has ruled that the due process clause of the Fifth
Amendment and Fourteenth Amendments to the federal constitution prohibit criminal
defendants from being convicted on any quantum of evidence less than proof beyond a
reasonable doubt. in Re Winship, 397 U.S. 358, 90 S. Ct. 1068, 23 L. Ed. 2D 368 (1970).
Although the reasonable doubt standard is not specifically mentioned anywhere in the
Constitution, the Court observed that the standard is so deeply rooted in the nation's
history as to reflect the fundamental value that "it is far worse to convict an innocent man
than to let a guilty man go free."

In civil litigation the standard of proof is either proof by a preponderance of the evidence
or proof by clear and convincing evidence. Both are lower burdens of proof than beyond
a reasonable doubt. A preponderance of the evidence simply means that one side has
more evidence in its favor than the other, even by the smallest degree. Clear and
convincing evidence is evidence that establishes the truth of a disputed fact by a high
probability. Criminal trials employ a higher standard of proof because criminal
defendants often face the deprivation of life or liberty if convicted while civil defendants
generally only face an order to pay money damages if the plaintiff prevails.

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Further readings
Scheibe, Benjamin D. 2003. "Claim of Reverse Engineering Doesn't Alter Burden of
Proof." The Los Angeles Daily Journal 116 (October 2).

Twining, William and Stein, Alex, eds. 1992. Evidence and Proof. New York: New York
University Press.

BURDEN OF PERSUASION

The onus on the party with the Burden of Proof to convince the trier of fact of all
elements of his or her case. In a criminal case the burden of the government to
produce evidence of all the necessary elements of the crime Beyond a
Reasonable Doubt.

The burden of persuasion is the affirmative duty of a party to establish his or her
right to judicial relief by convincing the trier of fact, the judge or the jury, that the
facts asserted are true and support the allegations. Whereas the Burden of
Going Forward shifts from the prosecution to the defense in a criminal case, or
from the plaintiff to the defendant in a civil case, as evidence is presented and
disproved, the burden of persuasion remains with the plaintiff or the prosecution
until the case is concluded. The phrase burden of persuasion is often used
interchangeably with the phrase burden of proof.

The burden of proof varies depending on whether the proceeding is criminal or

civil. In a criminal case, the burden of proof required of the state or government
will be satisfied by evidence that demonstrates "beyond a reasonable doubt" that
the defendant has committed the crime. Proof beyond a reasonable doubt does
not require that the proof be so clear that no possibility of error can exist; no
criminal prosecution would ever prevail if that were the standard. On the other
hand, reasonable doubt will be found to exist (and the defendant found not guilty)
if the evidence produced only demonstrates that it is slightly more probable that
the defendant committed the crime than that she or he did not. The REASONABLE
DOUBT STANDARD has been defined to mean that the evidence must be so
conclusive and complete that all reasonable doubts are removed.

In a civil matter, a plaintiff is required to establish his or her case by "a

preponderance of the evidence." A PREPONDERANCE OF THE EVIDENCE is a body of
evidence that is of greater weight or is more convincing than the evidence offered
in opposition—evidence that as a whole shows that the facts asserted by the
plaintiff and sought to be proved are more probable than not.

Another burden of proof applied in some matters is that the evidence must be
"clear and convincing." This standard of proof falls somewhere between the civil

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preponderance-of-the-evidence standard and the criminal beyond-a-reasonable-
doubt standard. Clear and convincing evidence requires the trier of fact to have a
"firm belief" that the facts have been established. The clear-and-convincing
standard, though not used nearly as often as the other two standards, has been
applied to some civil cases, including suits seeking the reformation of a contract.
In addition, the Supreme Court of the United States has held that the clear-and-
convincing standard is the constitutionally required burden of proof in a civil
commitment proceeding (Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L.
Ed. 2d 323 [1979]).

Further readings

Johnson, Calvin H. 1997. "IRS Restructuring: Burden of Persuasion vs. Burden of Production."
Tax Notes 77 (November 3): 624.

Rothstein, Paul F. 1981. Evidence. 2d ed. St. Paul, Minn. West.

Sprung, Marshall S. 1996. "Taking Sides: The Burden of Proof Switch." New York University Law
Review 71 (November): 1301–37.

Stratton, Sheryl. 1998. "Burden of Proof Shift—Making Sense of a Political Provision."

Tax Notes 80 (August 24): 887–9.

DUE PROCESS OF LAW

fundamental, constitutional guarantee that all legal proceedings will be fair and that one
will be given notice of the proceedings and an opportunity to be heard before the
government acts to take away one's life, liberty, or property. Also, a constitutional
guarantee that a law shall not be unreasonable, Arbitrary, or capricious.

The constitutional guarantee of due process of law, found in the Fifth and Fourteenth
Amendments to the U.S. Constitution, prohibits all levels of government from arbitrarily
or unfairly depriving individuals of their basic constitutional rights to life, liberty, and
property. The due process clause of the Fifth Amendment, ratified in 1791, asserts that no
person shall "be deprived of life, liberty, or property, without due process of law." This
amendment restricts the powers of the federal government and applies only to actions by
it. The Due Process Clause of the Fourteenth Amendment, ratified in 1868,
declares,"[N]or shall any State deprive any person of life, liberty, or property, without
due process of law" (§ 1). This clause limits the powers of the states, rather than those of
the federal government.

The Due Process Clause of the Fourteenth Amendment has also been interpreted by the
U.S. Supreme Court in the twentieth century to incorporate protections of the Bill of

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Rights, so that those protections apply to the states as well as to the federal government.
Thus, the Due Process Clause serves as the means whereby the Bill of Rights has become
binding on state governments as well as on the federal government.

The concept of due process originated in English Common Law. The rule that individuals
shall not be deprived of life, liberty, or property without notice and an opportunity to
defend themselves predates written constitutions and was widely accepted in England.
The Magna Charta, an agreement signed in 1215 that defined the rights of English
subjects against the king, is an early example of a constitutional guarantee of due process.
That document includes a clause that declares, "No free man shall be seized, or
imprisoned … except by the lawful judgment of his peers, or by the law of the land" (ch.
39). This concept of the law of the land was later transformed into the phrase "due
process of law." By the seventeenth century, England's North American colonies were
using the phrase "due process of law" in their statutes.

The application of constitutional due process is traditionally divided into the two
categories of Substantive Due Process and procedural due process. These categories are
derived from a distinction that is made between two types of law. Substantive Law
creates, defines, and regulates rights, whereas procedural law enforces those rights or
seeks redress for their violation. Thus, in the United States, substantive due process is
concerned with such issues as Freedom of Speech and privacy, whereas procedural due
process is concerned with provisions such as the right to adequate notice of a lawsuit, the
right to be present during testimony, and the right to an attorney.

Substantive Due ProcessThe modern notion of substantive due process emerged in

decisions of the U.S. Supreme Court during the late nineteenth century. In the 1897 case
of Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832, the Court for the
first time used the substantive due process framework to strike down a state statute.
Before that time, the Court generally had used the Commerce Clause or the Contracts
Clause of the Constitution to invalidate state legislation. The Allgeyer case concerned a
Louisiana law that proscribed the entry into certain contracts with insurance firms in
other states. The Court found that the law unfairly abridged the right to enter into lawful
contracts, as guaranteed by the Due Process Clause of the Fourteenth Amendment.

The next 40 years after Allgeyer were the heyday of what has been called the freedom-of-
contract version of substantive due process. During those years, the Court often used the
Due Process Clause of the Fourteenth Amendment to void state regulation of private
industry, particularly regarding terms of employment such as maximum working hours or
minimum wages. In one famous case from that era, lochner v. new york, 198 U.S. 45, 25
S. Ct. 539, 49 L. Ed. 937 (1905), the Court struck down a New York law (N.Y. Laws
1897, chap. 415, art. 8, § 110) that prohibited employers from allowing workers in
bakeries to be on the job more than ten hours per day and 60 hours per week. The Court
found that the law was not a valid exercise of the state's Police Power. It wrote that it
could find no connection between the number of hours worked and the quality of the
baked goods, thus finding that the law was arbitrary.

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In Allgeyer and Lochner and in other cases like them, the Court did not find that state
legislatures had failed to enact their laws using the proper procedures—which would
present an issue of procedural due process. Instead, it found that the laws themselves
violated certain economic freedoms that inhered in the Due Process Clause, specifically
its protection of liberty and what the Court described as freedom or liberty of contract.
This freedom meant that individuals had the right to purchase or to sell labor or products
without unreasonable interference by the government.

This interpretation of the Due Process Clause put the Court in direct opposition to many
of the reforms and regulations passed by state legislatures during the Progressive Era of
the early twentieth century. Justices who were opposed to the Court's position in such
cases, including oliver wendell holmes jr. and john m. harlan, saw such rulings as
unwarranted judicial activism in support of a particular free-market ideology.

During the 1930s, the Court used the doctrine of substantive due process to strike down
federal legislation as well, particularly legislation associated with President franklin d.
roosevelt's New Deal. In 1937, Roosevelt proposed a court-packing scheme in which
Roosevelt would have sought to overcome Court opposition to his programs by
appointing additional justices. Although the plan was never adopted, the Court quickly
changed its position on substantive due process and other issues and began to uphold
New Deal legislation. Now, a majority on the Court, including Chief Justice charles e.
hughes and Justice benjamin n. cardozo, abandoned the freedom-of-contract version of
substantive due process.

Even before the Court abandoned the freedom-of-contract approach to substantive due
process, it began to explore using the Due Process Clause of the Fourteenth Amendment
to re-evaluate state laws and actions affecting civil freedoms protected by the Bill of
Rights. Since the 1833 case of barron v. baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672, the
Court had interpreted the Bill of Rights as applying only to the federal government.
Beginning in the 1920s, however, it began to apply the Bill of Rights to the states through
the incorporation of those rights into the Due Process Clause of the Fourteenth
Amendment. In gitlow v. new york, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925),
the Court ruled that the liberty guarantee of the Fourteenth Amendment's Due Process
Clause protects First Amendment free speech from State Action. In near v. minnesota,
283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), the Court found that Freedom of the
Press was also protected from state action by the Due Process Clause, and it ruled the
same with regard to freedom of religion in Cantwell v. Connecticut, 310 U.S. 296, 60 S.
Ct. 900, 84 L. Ed. 1213 (1940).

Because incorporation has proceeded gradually, with some elements of the Bill of Rights
still unincorporated, it has also been called selective incorporation. Nevertheless, during
the twentieth century, most of the provisions of the Bill of Rights were incorporated by
the Due Process Clause of the Fourteenth Amendment, thereby protecting individuals
from arbitrary actions by state as well as federal governments.

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By the 1960s, the Court had extended its interpretation of substantive due process to
include rights and freedoms that are not specifically mentioned in the Constitution but
that, according to the Court, extend or derive from existing rights. These rights and
freedoms include the freedoms of association and nonassociation, which have been
inferred from the First Amendment's freedom-of-speech provision, and the right to
privacy. The right to privacy, which has been derived from the First, Fourth, and Ninth
Amendments, has been an especially controversial aspect of substantive due process.
First established in griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d
510 (1965), the Court later used it to protect a woman's decision to have an Abortion free
from state interference, in the first trimester of pregnancy (roe v. wade, 410 U.S. 113, 93
S. Ct. 705, 35 L. Ed. 2d 147 [1973]).

In several recent decisions, the U.S. Supreme Court has considered the application of
substantive due process in light of actions taken by law enforcement officers. It often has
determined that police actions have not violated a defendant's due process rights. In
County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043
(1998), for example, the Court determined that high-speed chases by police officers did
not violate the due process rights of the suspects whom the officers were chasing. In that
case, two police officers had engaged in a pursuit of two young suspects at speeds of
more than 100 miles per hour through a residential neighborhood. One of the young men
died, while the other suffered serious injuries. A unanimous Court held that the officers'
decision to engage in the pursuit had not amounted to "governmental arbitrariness" that
the Due Process Clause protects due to the nature of the judgment used by the officers in
such a circumstance.

The Court in City of West Covina v. Perkins, 525 U.S. 234, 119 S. Ct. 678, 142 L. Ed. 2d
636 (1999) again held in favor of law enforcement officers in a claim that police had
violated the plaintiff's due process rights. After seizing Personal Property, including cash
savings, of two owners of a home they had searched during a murder investigation, the
police retained the property at the police station. When the homeowners sought to have
the property returned, the police failed to provide the homeowners with detailed
information about how the owners could have their property returned. The homeowners
then filed a 42 U.S.C.A. § 1983 action against the police, claiming deprivation of Civil
Rights under the Due Process Clause. The Supreme Court held that because information
about the proper procedures to retrieve this property under state law was readily available
to the plaintiffs, the police had not deprived the homeowners of their due process rights.

The U.S. Supreme Court is more likely to find due process violations where the actions
of a government official are clearly arbitrary. In City of Chicago v. Morales, 527 U.S. 41,
119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999), for example, it struck down a Chicago anti-
gang ordinance as unconstitutional on due process grounds. The ordinance allowed police
officers to break up any group of two or more persons whom they believed to be loitering
in a public place, provided that the officer also believed that at least one member of the
group was a gang member. The ordinance had led to more than 43,000 arrests. Because
the ordinance did not draw the line between innocent and guilty behavior and failed to
give guidance to police on the matter, the ordinance violated the due process rights of the

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subjects of these break-ups. The Court held that since the ordinance gave absolute
discretion to the police officers to determine what actions violated the ordinance, it was
an arbitrary restriction on personal liberty in violation of the Due Process Clause.

In 2002, the Court found that arbitrary actions by a trial judge in a murder case violated
the due process rights of the defendant (Lee v. Kemna, 534 U.S. 362, 122 S. Ct. 877, 151
L. Ed. 820 [2002]). In that case, the defendant was charged with first-degree murder for
driving the getaway car for a man who had pled guilty to a murder charge in Kansas City,
Missouri. The defendant claimed that he had been in California at the time of the murder,
and four family members were to testify at trial that the defendant was not in Kansas City
at the time of the murder. However, the family members left before they were expected to
testify, and the defense could not locate them. The defense asked the court for a short
Continuance of one or two days, but the judge refused due to personal conflicts and a
conflict with another trial. Without the testimony of the family members, the defendant
was convicted of murder. The high court held that the judge's arbitrary actions violated
the defendant's due process rights, and it vacated the defendant's conviction.

Procedural Due ProcessThe phrase "procedural due process" refers to the aspects of the
Due Process Clause that apply to the procedure of arresting and trying persons who have
been accused of crimes and to any other government action that deprives an individual of
life, liberty, or property. Procedural due process limits the exercise of power by the state
and federal governments by requiring that they follow certain procedures in criminal and
civil matters. In cases where an individual has claimed a violation of due process rights,
courts must determine whether a citizen is being deprived of "life, liberty, or property,"
and what procedural protections are "due" to that individual.

The Bill of Rights contains provisions that are central to procedural due process. These
protections give a person a number of rights and freedoms in criminal proceedings,
including freedom from unreasonable searches and seizures; freedom from Double
Jeopardy, or being tried more than once for the same crime; freedom from Self-
Incrimination, or testifying against oneself; the right to a speedy and public trial by an
impartial jury; the right to be told of the crime being charged; the right to cross-examine
witnesses; the right to be represented by an attorney; freedom from Cruel and Unusual
Punishment; and the right to demand that the state prove any charges Beyond a
Reasonable Doubt. In a series of U.S. Supreme Court cases during the twentieth century,
all of these rights were applied to state proceedings. In one such case, gideon v.
wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), the Court ruled that the
Due Process Clause of the Fourteenth Amendment incorporates the Sixth Amendment
right to have an attorney in "all criminal prosecutions," including prosecutions by a state.
The case proved to be a watershed in establishing indigents' rights to legal counsel.

Procedural due process also protects individuals from government actions in the civil, as
opposed to criminal, sphere. These protections have been extended to include not only
land and personal property, but also entitlements, including government-provided
benefits, licenses, and positions. Thus, for example, the Court has ruled that the federal
government must hold hearings before terminating Welfare benefits (Goldberg v. Kelly,

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397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 [1970]). Court decisions regarding
procedural due process have exerted a great deal of influence over government
procedures in prisons, schools, Social Security, civil suits, and public employment.

The U.S. Supreme Court in Lujan v. G&G Firesprinklers, Inc., 532 U.S. 189, 121 S. Ct.
1446, 149 L. Ed. 2d 391 (2000) held that a state is not required to hold a hearing before
withholding money and imposing penalties on a building contractor. The California
Division of Labor & Standards Enforcement determined that a building subcontractor had
failed to pay the prevailing wage to workers who installed fire sprinklers in state
buildings. The California agency, without providing notice or a hearing, fined the general
contractor, which in turn withheld money from the subcontractor. The sub-contractor,
G&G Firesprinklers, Inc., sued the California agency, claiming that the agency had
violated the company's procedural due process rights. The Court disagreed, holding that
because the company could sue the agency for breach of contract, the fine did not
constitute a due process violation.

Further readings

Cassel, Douglass W., Jr. 2003. "Detention Without Due Process." Chicago Daily Law
Bulletin 149 (March 13).

Israel, Jerold H. 2001. "Free-Standing Due Process and Criminal Procedure: the Supreme
Court's Search for Interpretive Guidelines." Saint Louis University Law Journal 45
(spring).

Pennock, J. Roland, and John W. Chapman. 1977. Due Process. New York: New York
University Press.