During civil and criminal trials, the burden of proof is the obligation to present evidence on the subject of the lawsuit or the criminal charge. That is, to prove or disprove a disputed fact.

In a criminal trial, the burden is exclusively on the prosecution because of the presumption of innocence, unless the defense is alleging an affirmative defense such as insanity, However, in a civil trial the burden is initially on the plaintiff and may shift to the defendant. A major distinction between a civil and a criminal trial is the type of burden required to prove each case.

In both a criminal and civil trial, the parties have to convince a “trier of fact” (a judge or jury) of their position. Various burdens of proofs are associated with various matters, but when we talk about trial, there three types of burdens. Whether the parties were able to meet them usually determines the outcome. The three types are:

What Is the Burden in a Civil Trial?

In a civil case the plaintiff makes the original allegations in a complaint and bears the initial burden. The defendant then files a responsive pleading denying some or all of the allegations and the burden shift to them to prove their defenses or counterclaim. Below is the burden in a civil trial:

The Lowest Standard: Preponderance of the Evidence – The rules of civil procedure used by all U.S. Courts require that a plaintiff prove her case by a preponderance of the evidence. This roughly means a greater than 50% chance, based on all the reasonable evidence, that the defendant did the wrong that caused the damage. The defendant doesn’t have to do anything to defend their case if the plaintiff fails to prove their case by a preponderance of the evidence.

What Is the Burden in a Criminal Trial?

In a criminal trial, the burden of proof is always on the prosecution, as the defendant is presumed innocent. If the prosecution fails to prove guilt, the defendant does not need to prove anything. Below is the burden of proof in a criminal case:

The Highest Standard: Beyond a Reasonable Doubt – A much higher burden than preponderance of evidence. The standard is that there is a great likelihood the accused committed the crime. Most courts refuse to attach any numbers to the phrase “beyond a reasonable doubt,” but some people believe it means 90%, 95%, or even 99% sure.

Exceptions: There are a few exceptions when the defendant must prove their defense to the charges. These include the defenses of insanity, duress and self-defense.

The Intermediary Standard: “Clear and Convincing”?

The “clear and convincing” burden is used in both civil and criminal trials. Here, the party must demonstrate that its position is substantially more likely to be true.

In civil and criminal trials this standard is used in certain administrative hearings, criminal habeas corpus cases, disputes over wills, disputes over withdrawing life support and some fraud claims. It’s not as high as “beyond the reasonable doubt” standard but, unlike the “preponderance” standard, the plaintiff or the prosecution must prove the claim by a “substantial” likelihood. This usually means proving much more than a 50% chance of liability or guilt.

Should I Seek an Attorney’s Advice?

Whether it’s a civil or a criminal case, parties have certain burdens of proof that they must meet or withstand to prevail in the controversy. Therefore, a qualified attorney’s advice may help to address the overall strategy of convincing the trier of fact of your position.

An attorney will help you in representation and protection of your interests, rights, and defenses. If you belief that you may become a plaintiff or defendant in a civil case, a qualified attorney will may help you to understand your situation and options. In a criminal cases, together with your criminal defense lawyer, you may build a defense strategy addressing unique circumstances of your case.