Burdens and Presumptions

Question 1

What is the Burden of Production?

Answer 1

1) Burden of production = who must produce evidence

a) Burden of going forward/producing evidence is on the plaintiff in a civil case; prosecution in a criminal case

Question 2

What is the Burden of Persuasion?

Answer 2

Burden of persuasion = how much evidence must be produced

Question 3

Burden of Persuasion: What are the three levels?

Answer 3

• Preponderance of the evidence
• Clear and convincing evidence
• Beyond a reasonable doubt

Question 4

What is the standard for Preponderance of the Evidence?

Answer 4

Traditional civil standard; used in some aspects of criminal cases (motion to suppress, voluntariness of confession, etc.)

Question 5

What is the standard for Clear and Convincing Evidence?

Answer 5

Criminally related civil actions (fraud, validity of deed/will); to determine insanity in federal court, burden on D

Question 6

What is the standard for Beyond a Reasonable Doubt?

Answer 6

Criminal standard in guilt phase of trial

Question 7

Burden of Proof

Answer 7

a) Two main ways to shift a burden of proof;
i) Affirmative defenses (i.e., statute of limitations; Rule 12(b)(6); self-defense; laches)
ii) Presumptions (generally, not allowed in criminal cases)
(1) Presumption = conclusion made regarding the existence of a fact that may be drawn from other evidence that is admitted and proven to be true
(2) Most presumptions are rebuttable, but some presumptions are made irrebuttable by statute or common law