13. What is the “burden of proof” in a civil trial?
The burden of proof in a trial refers to the responsibility of a party to produce evidence in support of her allegations. The burden of persuasion refers to the strength of that evidence. The burden of proof in a civil trial is a finding of liability by either a “preponderance of the greater weight of evidence” or by “clear and convincing evidence”.
• A preponderance of the greater weight of evidence – Concerns how convincing is the available evidence. The jury should focus on the credibility and accuracy.
• Clear and Convincing Evidence – Is a slightly higher standard of proof than a preponderance of the evidence. It focuses on the greater likelihood or belief that the evidence is truthful and the fact finder’s belief in its truth.
In either case, the plaintiff must present evidence sufficient to meet this standard in order to demonstrate liability.
• Discussion: Compare the burden of proof in a civil trial to the burden of proof in a criminal trial? Why do you think the standard of proof is far lower in a civil trial than in a criminal trial?
• Practice Question: Donte is charged with criminal assault. Also, the alleged victim is suing Donte in civil court to recover damages. Donte is acquitted in criminal court. Is it possible that Donte will still be held liable in civil court?