The Burden of Proof in the US Criminal Justice System

By | September 21, 2021
The Burden of Proof in the US Criminal Justice System

This article on ‘The Burden of Proof in the US Criminal Justice System’ is written by Nilanjana Banerjee and discusses what the burden of proof means, the standard of burden of proof in several cases, the tools for the burden of proof etc.

I. Introduction

US Criminal Justice System follows the principle of ‘presumed innocent until proven guilty and therefore the burden of proof is higher on the prosecution side to prove the guilt.’

Be it criminal trials or civil suits, either party has to provide sufficient evidence to prove his or her side of the case. To prove the crime done, the side of the prosecution has to establish the elements of the crime i.e. the act, the intent, harm done. Mere establishing the elements is not sufficient in itself, there are certain standards of proof, which has to be proved.

These standards are different in civil and criminal cases i.e. in criminal cases, the burden of proof is higher. This difference is attributed to the difference in the goals of civil and criminal litigation. Also, the burden is on the prosecution to establish the guilt of the accused.

The reason behind this is the assumption innocent until proven guilty. Moreover, there are several classifications of crime done, but the burden of proof remains the same i.e. beyond a reasonable doubt. Be it a felony, misdemeanour, a felony- misdemeanour, infractions or any other category (if exists) the burden of proof does not change. 

II. What is the Burden of Proof?

The burden of proof is the concerned party’s responsibility to prove or disprove the allegation or charge and the failure to meet the burden of proof can lead to defeat in the case or can also be treated as a ground of appeal for either party in the case.

The burden of proof has two components- burden of production and burden of persuasion. The burden of production i.e. the former component is the obligation on the party to present evidence to the judge of the concerned case, while the second component i.e. the burden of persuasion is the duty to convince the jury with the evidence presented.

There is an effort made to convince the jury that the evidence meets a certain standard (here it is beyond reasonable doubt). The standard is a measuring point that is usually determined by the quality as well as the quantity of the evidence produced. Meeting the burden of proof beyond a reasonable doubt means the party has successfully produced such compelling and convincing evidence that the jury has agreed and established the fact. In criminal cases, the prosecutor carries the burden of proving the case (inclusive of every element of such crime). The trier of facts i.e. a judge (in a bench trial) determines whether the burden of proof is met by the party and evidence produced thereby. In criminal trial cases the trier of facts has to have a jury because of the right to jury trial bestowed by the sixth amendment, while, in civil cases, the situation is different.

III. The Burden of Proof in civil cases

In civil cases, the burden of proof varies depending on the type of case being tried in the court. Generally, in civil cases, the burden of proof on the plaintiff is known as the preponderance of the evidence. As per this, the plaintiff is required to introduce slightly higher and better evidence than the defence produces. The difference can be as slight as 51% on the part of the plaintiff while 49% on the part of the defendant.

In these kinds of burden of proof, the evidence produced must convince the judge as to ‘more likely than not’ that is the defendant or his acts liable for the plaintiff’s loss or injury. The plaintiff has to produce better evidence so as to turn the case in his or her favour.

The plaintiff has to produce better evidence so as to turn the case in his or her own favour. However, if the evidence produced is questionable and not convincing enough, then, the court declared that the burden of proof is not met. The judge or jury can even declare that plaintiff has lost the case. If the plaintiff is not able to meet the required burden of proof, then consequently the defendant turns out to be victorious without producing any evidence.

IV. The Burden of Proof in a criminal case

In criminal prosecutions, the burden of proof is the most challenging one. It is the burden of proof beyond a reasonable doubt. The parties to criminal prosecution struggle a lot and establishing evidence of nature ‘beyond reasonable doubt has proven to be an assiduous task.

Regarding these Chief Justice Shaw stated that –“What is a reasonable doubt? It is a term, is often used, probably, pretty well understood, but not easily defined. It is not mere possible doubt, because everything related to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence as (produced before court), leaves the mind of the juror in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.”[1]

Generally, the states vary as to their requirements in the burden of proof during a criminal prosecution. But there is one common notion that the evidence produced by the victim must overcome the presumption of innocence of the accused. This presumption is a part of the constitutional guarantee of due process of law.[2] It relates to the aim of criminal prosecution to punish the guilty and acquit the innocent. Even if there is a slight doubt that the accused of the defendant in the concerned case is innocent, or that the evidence produced lacks credibility, the defendant should not be punished rather acquitted.

But there can be executed to the general notion of prosecution carrying the burden of proof. Such exceptions apply when the defendant claims the protection of any defence. There are different defences available and identified by law, like insanity, intoxication, ignorance, mistake, consent, self-defence, other use of force defences etc. In each of these cases, the accused claiming defence carries the burden of proving it.

There are further differences in different states concerning the application of the defence. Some states put it on the defendant to meet the burden of production while requiring the prosecution to convince the jury to meet the persuasion disproving the defendant. Other states require the defendant to meet the burden of production as well as persuasion.

However, the defendant does not always have to prove a defence in criminal prosecution. There can be situations when the prosecution is unable to meet the burden of proof and therefore the defendant is acquitted.

Elaborating this with an example- suppose Joe is on a trial for first-degree murder and the only evidence is the murder weapon found during the search. Before the trial began, Joe males a motion to suppress the evidence claiming that the search warrant was signed by a mentally incompetent judge. Joe was successful in his motion to suppress the evidence and hence, the murder weapon was considered inadmissible at trial. But the prosecution forcibly continued the trial. If there is no other credible evidence available, then Joe does not have to put effort and produce anything in defence. Joe will be acquitted when the burden of proof is not met by the prosecution.

V. Tools of Burden of Proof

Basically, there are two tools available to the parties to meet the burden of proof and those two tools are inference and presumption.

  1. The inference is the conclusion which the judge or the jury may make under certain circumstances. It cannot be made mandatory and remain only at a choice at the hands of the jury. Suppose, A has punched B. So if the prosecution is able to establish that A has punched B after saying ‘I Hate You’. Then the court can infer that the punch was intentional.
  2. A presumption is a conclusion which the judge must make under certain circumstances. It can be the presumption of innocence of the accused. The judge or the jury is bound to begin the trial by presuming that the accused is innocent rather than perceiving him as guilty. The presumption made by the jury can be either rebuttable or irrebuttable. If the presumption is rebuttable, it can be disproved, like the presumption of the innocence of the accused can be rebutted when convincing evidence is produced and the burden of proof is established beyond a reasonable doubt. Whereas an irrebuttable presumption cannot be disproved, like the presumption of children below seven years of age are incapable of forcing heinous criminal intent.

The parties can make use of these tools to prove their point.

VI. Evidence and Burden of Proof

Evidence is considered to be the key to meet the burden of proof. Primarily, evidence is classified into two types i.e. circumstantial evidence and direct evidence.

  1. The former type i.e. circumstantial evidence indirectly proves any fact. The biggest example is that of fingerprint evidence. The accused fingerprint at the crime scene directly proves that he placed his finger there and indirectly proves his presence at the crime scene. However, their mere presence at the crime scene does not prove his guilt. These kinds of evidence leave room for doubt in the judge’s mind and hence, establishing the point becomes more difficult. However, DNA evidence is very compelling evidence which often makes the task of prosecution easier.
  2. The direct evidence as the name suggests, directly proves a fact, like an eyewitness and his description of the incident directly proves or disproves the point. Videos and photographs are equally significant. This evidence leaves less potential for doubt. But there can be cases where the direct evidence might lose its credibility, hence circumstantial evidence is preferred over it.

In this way, different pieces of evidence either ease or toughen the task of establishing a fact and thereafter meeting the burden of proof. Successfully establishing the burden of proof is key to emerge victorious in a trial.


[1] Commonwealth v. Webster, 5 Cush. 295, 59 Mass. 295

[2] Re Winship, 397 U.S. 358,(1970).

  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
  2. Legal Bites Academy – Ultimate Test Prep Destination

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