Burden of Proof

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Related to Burden of persuasion: burden of proof, Clear and convincing evidence

Burden of Proof


(Latin, onus probandi), in legal procedure, the rule by which the obligation to prove particular circumstances of a case is distributed among participants in the case. Under socialist law the distribution of burden of proof reflects the competitive nature of the judicial process and activates the court’s routine.

The law of the USSR establishes that each party in a civil trial must prove the circumstances on which he relies in substantiating his claims or defense. For example, the plaintiff must prove the circumstances constituting the grounds of the suit and the facts attesting to the defendant’s violation of his rights; the defendant must prove the grounds of his defense. In each specific case the scope of facts subject to proof by those participating in the case is determined by the norms that regulate the particular legal relationship (for example, in a suit for redress of an injury the burden of proof in showing the absence of guilt falls on the defendant). In suits relating to various types of contracts, the responsibility for proving violation of an obligation rests with the creditor; the debtor must prove the facts that confirm the fulfillment of his obligations. The court has the right to direct persons participating in the trial to submit additional evidence, and it may, on its own initiative, gather evidence to determine the true relationship between the parties. In a criminal trial, the law prohibits the court, procurator, investigator, or the person who conducted the inquiry from transferring the burden of proof to the accused.

The term “burden of proof is used in bourgeois civil procedure. This burden falls entirely on the parties, and the court plays no active part in questions of proof.

References in periodicals archive ?
The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.
2d 679, 690 (1975) states: '[W]hen a beneficiary has succeeded in proving that the trustee has committed a breach of duty and that a related loss has occurred, we believe that the burden of persuasion ought to shift to the trustee to prove, as a matter of defense, that the loss would have occurred in the absence of a breach of duty.
The burden of persuasion requires a certain party ultimately to persuade the jury of the truth of an element or suffer the jury's adverse determination on that element.
In going from discussing the burden of production to explaining the academic view of the burden of persuasion, I need to use a different diagram, one that represents the internal thought process of the fact-finder in ultimately weighing the evidence.
71) In light of the evidence in the case, the Eighth Circuit opined that Gross "should have been held to the burden of persuasion applicable to typical, non-mixed-motives claims" as defined in McDonnell Douglas and that "the jury thus should have been instructed only to determine whether Gross had carried his burden of 'prov[ing] that age was the determining factor in FBL's employment action.
164, 187-88 (1989) (holding that the black petitioner in a Title VII case could carry her burden of persuasion without showing that she was better qualified for a job than the white applicant hired in her stead).
A juror, or even a judge, might believe that she is applying the "beyond a reasonable doubt" standard to a tardy but extremely sympathetic and deserving plaintiff, even though she actually is applying a lower burden of persuasion.
40) Nevertheless, under the standard set forth in Greenwich Collieries, the General Counsel should have had the burden of persuasion to show that the union connection was a motivating factor in his discharge in order to shift the burden of proof.
41) This leaves the plaintiff with the burden of persuasion to show intentional discrimination, without the benefit of a presumption, by showing either that a discriminatory reason more likely motivated the employer or that the articulated reason is not the true reason, but rather a pretext for intentional discrimination.
75) The IDEA, however, does not speak directly to the issue of which party bears the burden of persuasion at due process hearings.
You may also hear judges speak of other burdens, such as the burden of pleading (which party must raise the issue), the burden of going forward with the evidence (the need to produce sufficient evidence to allow the issue to go to the fact finder), and the burden of persuasion (who loses if the quantum is not met).
They added that the duress defense also resembles the defenses of self-defense, insanity, and entrapment, for which federal courts (absent a statutory enactment to the contrary) have placed the burden of persuasion upon the prosecution in conjunction with federal crimes.