Burden of proof (law)

The burden of proof (Latin: onus probandi) is the obligation of a party in a trial to produce the evidence that will prove the claims they have made against the other party. In a legal dispute, one party is initially presumed to be correct and gets the benefit of the doubt, while the other side bears the burden of proof. When a party bearing the burden of proof meets their burden, the burden of proof switches to the other side. Burdens may be of different kinds for each party, in different phases of litigation. The burden of production is a minimal burden to produce at least enough evidence for the trier of fact to consider a disputed claim.[1]:16–17 After litigants have met the burden of production and their claim is being considered by a trier of fact, they have the burden of persuasion, that enough evidence has been presented to persuade the trier of fact that their side is correct. There are different standards of persuasiveness ranging from a preponderance of the evidence, where there is just enough evidence to tip the balance, to proof beyond a reasonable doubt, as in United States criminal courts.[1]:17

The burden of proof is usually on the person who brings a claim in a dispute. It is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, a translation of which in this context is: "the necessity of proof always lies with the person who lays charges."[2]

The party that does not carry the burden of proof carries the benefit of assumption of being correct, they are presumed to be correct, until the burden shifts after presentation of evidence by the party bringing the action. An example is in an American criminal case, where there is a presumption of innocence by the defendant. Fulfilling the burden of proof effectively captures the benefit of assumption, passing the burden of proof off to another party.


The term "burden of proof" is used to mean two kinds of burdens: The burden of production (or the burden of "going forward with the evidence") and the burden of persuasion.[3]

A "burden of persuasion" or "risk of nonpersuasion"[4] is an obligation that remains on a single party for the duration of the court proceeding.[5] Once the burden has been entirely discharged to the satisfaction of the trier of fact, the party carrying the burden will succeed in its claim. For example, the presumption of innocence in a criminal case places a legal burden upon the prosecution to prove all elements of the offense (generally beyond a reasonable doubt), and to disprove all the defenses except for affirmative defenses in which the proof of non-existence of all affirmative defense(s) is not constitutionally required of the prosecution.[6]

The burden of persuasion should not be confused with the evidential burden, or burden of production, or duty of producing (or going forward with) evidence[7] which is an obligation that may shift between parties over the course of the hearing or trial. The evidential burden is the burden to adduce sufficient evidence to properly raise an issue at court.