Policy Background Burdens of Proof

For Educational Use Only
§ 5122Policy Background; Burdens of Proof, 21B Fed. Prac. & Proc. Evid. § 5122 (2d ed.)
21B Fed. Prac. & Proc. Evid. § 5122 (2d ed.)
Federal Practice & Procedure

Federal Rules Of Evidence
Database updated April 2015
Kenneth W. Graham, Jr. a386
Federal Rules of Evidence
Chapter 4. Presumptions
Kenneth W. Graham, Jr. a409
Rule 301. Presumptions in Civil Cases Generally
Link to Monthly Supplemental Service
§ 5122 Policy Background; Burdens of Proof
Primary Authority
Fed. R. Evid. 301
Writers have had much to say about presumption policy. 1 They frequently bewail the complexity of the topic; 2 one has
called it “the quantum theory of the law.” 3 But some have seen the problem less in any inherent complexity of presumptions
but more in the careless use of the essential concepts. 4 McCormick's oft-quoted “assertion that ‘ “presumption”’ is the
slipperiest member of the family of legal terms, except for it's first cousin, ‘burden of “proof”’ 5 still pops up 50 years after
it was first penned. 6 Frequently the word “presumption” gets attached to mere “inferences.” 7 Blame for what one court
called “a semanticist's nightmare” cannot be so easily affixed. 8 Learned Hand blamed courts 9 , but others have suggested
the fault lies with the writers. 10
Some drafters have optimistically supposed that clear statutory definitions can banish confusion. 11 Writers have doubted
that this can be done because of the inherent complexity of the concepts and the political dynamics that lead some courts to
deliberately “misunderstand” what the rules require them to do. 12 Because presumptions, though procedural rules, reflect
substantive policies and can require unpopular results, “bad” presumption opinions frequently reflect disagreement with the
substantive policy rather than misunderstanding of the procedural requirements. 13 But writers often play the same game;
that is, accusing rulesmakers of misunderstanding the subject because they disagree with the policies the rules reflect. 14
Thus the topic appears to be one that requires care on the part of both writer and reader if we are to avoid misleading on
one hand and misunderstanding on the other. The reader, we hope, will pardon us if we approach the topic with a series of
“baby steps” rather than plunging straight into the thicket.
The “adversary” system and production of evidence
We begin with the basics. Under the American system of party initiation and party presentation, the judge does not roam
about the countryside like the Lone Ranger seeking wrongs to right; ne or both of the parties must bring their dispute to court
and they must provide the “facts” needed for the resolution of the dispute. Suppose, however, that a party were to come before
a court, demand satisfaction from another, yet refuse to provide any information about the dispute. The judge might summon
the opponent and require him to get the evidence, but this seems unfair; after all, the opponent is not asking any favors of
the court, so why should he be put to the task of gathering data? For the most part, judges have accepted this response and
refused to give the claimant the relief demanded where he has failed to bring evidence to support his claim.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

The court might premise the decision against the claimant on one of two slightly different grounds. First, the court might
take the position that it has not decided the dispute at all, but simply refused to act in the face of a procedural default by
the plaintiff. Second, the court might go farther and assert that it has decided the dispute against the plaintiff on the grounds
that his failure to produce evidence leads to an inference that there is none to support his claim. Under the first ground, the
plaintiff might return on another day and attempt to produce evidence to support his claim, arguing that since his default
was merely procedural he should not be barred from trying again. For reasons of economy, most modern courts reject this
argument, so that for all practical purposes a decision on the first ground is no different from one based on the second ground.
Of course, once courts establish this practice, only desperate ignorant litigants will come to court without some evidence
to support their claim. In some cases, the evidence may be so slim that the court may suspect its only purpose is to avoid
the default, perhaps evolving a rule that “slight evidence equals no evidence” for purposes of decision. For the most part,
however, the court can compel the parties to produce evidence by the threat that their failure to do so will lead to a decision
against them on the merits.
Then the court may face the converse question: what to do when both sides have produced evidence but the court is still
unable to make up its mind? Courts usually answer—perhaps on the notion that the conflicting evidence mutually destructs so
that the court is back to Square One with no evidence—that the claimant loses. Notice that while as a conceptual and practical
matter the decision based on a failure to produce appears much different than a decision based on inability to decide, courts
can construct a theoretical explanation that equates the two. If courts call this explanation a failure to carry “the burden of
proof,” much confusion can arise over two like-named notions that deal with entirely different sorts of procedural problems.
So far only the judge has been considered; the procedural problem takes on a new dimension when the jury comes into use.
Courts could have taken the position that in jury trials these two problems—failure to produce and inability to decide—should
be dealt with by the jury on an ad hoc basis without any intervention from the judge. However attractive that alternative might
seem to the student struggling with the conceptual apparatus of presumptions, courts took a different path. Not only do judges
tell the jury how to resolve these issues, but in the case of the failure to produce they have taken over the decision themselves.
Judicial meddling with the “burden of proof” in jury cases would be less significant if a party only had to produce some
evidence to satisfy the demands of the “no evidence-no decision” rule. But judges quickly discovered that by cranking up the
standard to a higher level, they could take for themselves the power of decision that was in constitutional theory supposed
to belong to the jury. Thus, in jury cases the notion that a party had to have some evidence to get a decision became a rule
that he had to have enough evidence to convince the judge that a jury decision in his favor would be reasonable. Hence, in
assessing the duty to produce evidence, a party had to fear not only his failure to convince the jury in its decision on the
merits but also be wary that he could not satisfy the judge on the procedural question.
The problem of inability to decide also arises in jury trials, but it cannot be directly resolved by the judge. Instead, she is
permitted to instruct the jurors on how to deal with uncertainty; 15 i.e., if they cannot make up their minds, the civil plaintiff
loses. 16 (This issue must be distinguished from the related, but different, problem of the inability of the jurors to agree among
themselves.) In criminal cases, the problem of inability to decide is submerged by the policy favoring errors in the direction
of innocence; the jurors will be instructed that since the impact of their decision is more severe than in civil cases, they must
be able to do more than simply make up their minds—they must have no reasonable doubts concerning a decision to convict.
With this schematic in mind, 17 we may now turn to the writers and a crisis in terminology.
The two “burdens of proof”
Down to the end of the 19th Century, judges and lawyers used the phrase “burden of proof” to refer both to the device to
compel evidence and the device to deal with jury uncertainty. 18 Thayer seems to have been the first writer to clearly identify
the two functions served by the term and the dangers of confusing them. 19 To avoid confusion, he would reserve “burden
of proof” for the duty to produce evidence and rename the uncertainty rule as “the burden of establishing.” 20 Wigmore,
perhaps finding his mentor's phrase ugly, wanted to dub the uncertainty rule “the risk of nonpersuasion.” 21
Acutely aware of the confused usage of “burden of proof”, Morgan and the American Law Institute dropped the term entirely
and came up with new labels. In the Model Code of Evidence the duty to bring in evidence would be called, appropriately,

“the burden of producing evidence” while the uncertainty rule would become, a la Wigmore, “the burden of persuasion.” 22
The Commissioners on Uniform State Laws perversely rejected this sensible solution; the original Uniform Rules of Evidence
followed the Model Code on “burden of producing evidence” but brought back “burden of proof” for the uncertainty rule. 23
Those states adopting the original Uniform Rules were stuck with this unhappy nomenclature. 24
Morgan and McCormick sensibly adopted the Model Code terminology. 25 Modern writers have generally followed suit 26 ,
though some have shortened the “burden of producing evidence” to the “burden of production.” 27 Others have gone off on
their own semantic frolic-and-detour. 28 Though courts now generally recognized the two burdens of proof 29 , some writers
have thought it necessary create a troika by throwing in “the burden of pleading.” 30 Others have tried to use “burden of
proof” as a compendious term to cover both the burden of production and the burden of persuasion. 31 (As the reader will
have noticed, we follow the latter practice but pluralize “burdens of proof” to avoid confusion with the California use of the
phrase for the uncertainty rule.)
Because they did not cover the burdens of proof, the Advisory Committee did not have to face the terminological problem. 32
Though cognizant of the need to avoid confusion, state drafters cannot be said to have followed any consistent pattern. 33
Oregon uses “burden of producing evidence” and “burden of persuasion”. 34 The New York drafters opted for “burden of
production” and “burden of persuasion” 35 but later changed to “burden of going forward” and “burden of proof.” 36 Other
states followed our preferred practice; that is, using “burden of proof” to encompass the two burdens of production and
persuasion. 37
Allocation of burdens of proof; policy and politics
Unlike other codifications 38 , neither Rule 301 nor other provisions in the Evidence Rules deal with burdens of proof. 39
Perhaps the Advisory Committee agreed with Thayer that the burdens of proof lie beyond the boundaries of evidence but are
rather matters of substantive law that the Rules Enabling Act bars the rulesmakers from altering. 40 Nonetheless, the writers
seem to agree that some elementary exposition of burdens of proof will assist readers in understanding the presumption policy
of Rule 301. 41 We begin with the allocation of burdens of proof; that is, which party is assigned to bear them. 42
The writers agree that burdens of proof should be allocated by the policy choices of the substantive law; 43 hence,
presumptions either support or fine-tune such policy preferences. 44 Courts, on the other hand, frequently ignore policy in
favor of formalistic methods of assigning burdens of proof. 45 Sometimes the formal rule is circular; e.g., the burden of proof
is on the party who will lose if no evidence is produced. 46 Sometimes the formal rule is just silly; e.g., the burden of proof
is on the party who asserts the affirmative version of the fact. 47 This test if meaningless because any fact can be stated in
either positive or negative form; e.g., the defendant was not negligent or the defendant was careful. 48
Writers sometimes use formalistic tests; e.g., that the burden of proof follows the burden of pleading. 49 While this does
not tell us why a particularly party has the burden of pleading, it does remind us that at the beginning of the case the two
burdens coincide 50 ; that is, that the same party who has the burden of persuasion also starts out with the burden of producing
evidence 51 —or as it is sometimes put, the burden of production follows the burden of persuasion. 52
The association of burdens of proof with pleading requirements also reflects the default rule; in the absence of other policy
considerations, the burdens of proof fall upon the plaintiff. 53 Courts justify this on the ground that as the one asking the court
to disturb the status quo, the plaintiff ought to wield the laboring oar in moving the judicial barge. 54 Though sometimes this
rationale seems even-handed 55 , courts can manipulate this justification to favor those with extrajudicial power that exceeds
that of ordinary litigants. 56 For example, courts apply burdens of proof in ways that favor environmental polluters. 57
—The “Three Ps” plus one

One popular way of categorizing the relevant considers in allocating the burdens of proof is The Three Ps—Policy,
Probability, and Possession of Proof. 58
• Policy. In determining the placement of burdens of proof, courts begin with the policy of the substantive law being
enforced. 59 Sometimes courts put a finger on the scales to favor the party who seeks to vindicate the policy of the
substantive law. 60 In other cases courts place hurdles in the path of the litigant who seeks to advance a position
disfavored by the substantive law. 61 The use of substantive policy in fixing burdens of proof seems well-understood
by both courts 62 and commentators. 63
• Probability. Under this heading, courts ask “what is the most likely state of affairs in situations like this?” 64 They
then place the burdens of proof on the party asserting the least probable fact or set of facts; for example, since few
noteholders would go to the expense of suing if the note had been paid, the burden of proving payment falls on the
defendant. 65
• Possession of Proof. Here courts look to see whether one party has superior access to the evidence needed to prove
the fact. 66 If so, then that party must bear the burdens of proof. 67 As Bentham once put it, the burden should be
cast “on whom it would sit lightest.” 68
Some writers would add a fourth consideration, though they do not agree on what it should be. 69 The Oregon drafters
would throw “fairness” into the mix. 70 Some writers add the need for a default rule. 71 Sometimes those adding other
considerations may suppose that the creation of presumptions requires additional justification 72 —though others have thought
that the traditional troika suffices for this purpose. 73 Since most of the novel considerations could easily be accommodated
under the traditional triad and courts usually rely on a combination, readers will not go wrong by ignoring the additional
considerations. 74 Proliferation of “factors” that influence allocation of the burdens of proof does not produce payoffs
commensurate with the effort. 75
—“assumptions” and the burden of persuasion
Rules that fix the burden of proof are often miscalled “presumptions.” 76 The best known of these is the so-called
“presumption of innocence” 77 —but there are others. 78 These cannot be “true presumptions” because a true presumption
cannot arise without proof of some “basic fact” but the criminal defendant can claim the “presumption of innocence” without
proving anything. 79 To avoid confusing these psuedo-presumptions with the real thing, scholars long ago suggested that
rules that fix the burden of persuasion be called “assumptions.” 80 We shall use this term because though it has caught on
with only a few writers, 81 it has proved more popular with the state drafters. 82
Readers need to be alert for assumptions masquerading as “presumptions” because they pop up frequently; e.g., the
“presumptions” f sanity and competence to contract—and as many laymen know, “everyone is presumed to know the law.” 83
And some states have impressive lists of statutory assumptions. 84 Assumptions allocate the burden of persuasion and so
arise from the same policy considerations that courts use when allocating the burdens of proof. 85
Weight of the burden of persuasion
The substantive law not only allocates the burden of persuasion, it also determines its weight. 86 By tinkering with the weight
of the burden, courts and legislatures can make the burden more closely reflect the strength of the policies that determined
its allocation. 87 We can see this if we catalog the major burdens from the heaviest to the lightest. 88
—Beyond a reasonable doubt

The heaviest burden falls on the prosecution in criminal cases; the jury must be satisfied of the defendant's guilt “beyond a
reasonable doubt.” 89 The demand for proof coming as close to certainty as is humanly possible reflects an understanding
that convictions of the innocent threaten the legitimacy of the criminal justice, and by implication, the state itself. 90 Indeed,
the Supreme Court has held that heavy burden is required by the Sixth Amendment and is thus binding on the states. 91
The “beyond a reasonable doubt” standard is limited to criminal cases. 92 Attempts to extend it other cases implicating
constitutional rights have not fared well. 93
—“Clear and convincing evidence”
Courts seeking an intermediate standard of proof not as high as “beyond a reasonable doubt” but stronger than the normal
civil standard often pick “clear and convincing evidence” 94 —or as those who can't get by on just two adjectives put it,
“clear, cogent, and convincing.” 95 Attempts to define this standard seem to fall flat. 96 Nonetheless, courts keep trying. 97
Perhaps they feel that simply saying that “clear and convincing” is an intermediate standard does not give any indication of
whether it is closer to the top or the bottom of the gap between “preponderance” and “beyond a reasonable doubt.” 98 But to
us, at least, it seems that any attempt to triangulate between indecision and conviction is doomed to failure. 99
Perhaps we can get a better idea of the “clear and convincing” standard by looking at the kinds of cases in which courts think it
applies. 100 The Supreme Court has applied the standard in cases involving important liberty interests such as proceedings for
psychiatric imprisonment 101 or deprivation of parental rights. 102 Similarly lower courts have required “clear and convincing
evidence” before humans can be deported 103 or corporations found in contempt. 104 But federal courts have also applied
the higher standard to cases involving property rights. 105 State cases run a similar gamut from juvenile court proceedings
through fraud to union liability for acts of members. 106 Some states have presumptions that can only be rebutted by “clear
and convincing evidence.” 107
—“Preponderance of evidence”
The normal burden of persuasion in a civil case requires only that party prove the fact by a “preponderance of the
evidence.” 108 The lesser standard applies whether the cause of action is common law or statutory 109 or even when it is
rooted in a constitutional provision. 110 Courts have tried to define this standard with unimpressive results. 111 Definitions
seem needless because “preponderance” is a default standard 112 ; that is, it applies only when the jury cannot make up its
mind. 113 Hence, all the jury needs to be told is that if it cannot decide who should win, the party with the burden of persuasion
loses. 114 Some writers have tried to puff up the preponderance standard with academic hot air, including fancy statistical
analysis. 115 Attempts to quantify the preponderance standard run the danger that jurors may suppose that all that is required
to decide the case is to count the witnesses produced by each side. 116
—Other and lower standards
The best known sub-preponderance standard of proof is the one placed on a criminal defendant; n issues which can be
constitutionally placed on her, she need do no more than raise a reasonable doubt. 117 Some states once tried to raise that
standard but the constitutionality of such efforts can reasonably be doubted. 118 Some courts have recognized a lower burden
in civil cases for social welfare claimants. 119
Some courts have created novel standards of proof that cannot easily be compared with the better known standards. 120 For
example, Washington courts require tort claimants to prove some elements “to a reasonable certainty”—a standard that those
who have studied the caselaw still find “not entirely clear.” 121 Such standards illustrate nicely the claims of scholars that
judges either do not understand the standards of persuasion 122 or they manipulate them to reach substantive results. 123
The Burden of Production

The burden of production—also known as “the burden of producing evidence”—refers to the obligation of the party to
produce enough evidence at trial to justify sending the case to the jury. 124 The party who fails to satisfy this burden will be
sanctioned by the court's entry of a directed verdict in favor of her opponent. 125 Hence, until a state authorizes the entry of
a directed verdict, it cannot impose a burden of production. 126
The burden of production can be compared with the burden of persuasion in terms of the different procedural incidents of each.
• The burden of production is in the hands of the judge; the jury enforces the burden of persuasion. 127
• The sanction for failure to carry the burden of production is a directed verdict for the adversary; the sanction for
failure to carry the burden of persuasion is a jury verdict for the opposing party. 128
• The judge must instruct the jury on the burden of persuasion; the jury never need hear about the burden of
production. 129
• The burden of production can arise each time the party with the production burden rests which may be several times
during the trial; the burden of persuasion comes into play only once—when the case is submitted to the jury. 130
• Since it can only arise once, it is sometimes said that the burden of persuasion never shifts. 131 On the other
hand, writers suppose that the burden of production can shift back and forth as the parties take turns introducing
evidence. 132 Both of these propositions seem incomplete, even misleading. 133 Satisfying the burden of production
does not shift the burden of production to the adverse party in the sense that if he does nothing, the court will direct
a verdict against him. 134 On the other hand, since satisfying the burden of production means the case will go to the
jury, as a practical matter the opponent may feel a need to introduce evidence to ensure that the jury does not find
the evidence sufficient to justify a verdict. 135 Similarly, when the party with the burden of proof carries the “third
burden of proof”, the court will direct a verdict against the opponent who does not introduce evidence—whether or
not one calls this a “shifting” f the burden of production or not. 136 And as we shall see, presumptions can shift the
burden of production, the burden of persuasion or both. 137
• Finally, the two burdens of proof are related in that the burden of production normally falls on the party with the
burden of persuasion. 138 On the other hand, unless the burden of production is satisfied, the burden of persuasion
will never arise because the judge will take the case from the jury. 139
—weight of production burden
Compared to the several weights of the burden of persuasion, the burden of production has only one; the party must introduce
sufficient evidence to support a jury finding in his behalf—that is, enough evidence that a reasonable jury could find that
evidence satisfied the requisite burden of persuasion. 140 When the party satisfies the burden of production, she is sometimes
said to have proved a “prima facie case.” 141 Some writers get exercised over Wigmore's suggestion that the burden of
production weighs less than the burden of persuasion. 142 But this seems proper if we keep in mind the differing roles of
judge and jury; that is, the judge asks “could a reasonable jury find that the evidence preponderates even though I personally
do not think it does?” whereas the juror must find against the party if she thinks the evidence does not preponderate. But
before we look more closely at this question, we must consider another “burden of proof.”
The “third burden of proof”
Readers who have followed along this far may now realize that it is possible to speak of another burden of proof beyond
the burden of production and the burden of persuasion. 143 The party with the burden of persuasion could, at least in theory,
produce so much evidence that unless her opponent introduces some contrary evidence the judge would be required to grant

a directed verdict in favor of the party with the burden of persuasion. 144 Some writers refer to the evidence needed to reach
this level as a “prima facie case”—an unhappy usage since as we have seen the same phrase is often used to refer to the
quantum evidence necessary to satisfy the burden of production. 145 To avoid this confusion, we shall say that when a party
produces sufficient evidence to entitle her to a directed verdict if the evidence is unrebutted, that party has carried the “third
burden of proof.” 146
Writers say that the party who carries the “third burden of proof” has shifted a burden of proof to the party who began the case
with no burden of proof on the issue. 147 It seems generally agreed this burden is one of production, not persuasion. 148 The
use of the “third burden” concept helps square this with the dogma that the burden of proof never shifts. 149 The “third burden
of proof” differs from the other two in that the party volunteers to carry it; the “third burden” is never imposed by law. 150
Moreover, when the “third burden” is carried, the opponent need not prove the contrary of the fact but simply introduce some
evidence to contradict the proponent's evidence. 151
Because of the quantum of evidence needed, carrying the third burden of proof by the introduction of evidence rarely occurs
in practice. 152 For this reason, the third burden seldom figures in appellate opinions and only a few writers consider it. 153
But as we shall see, one of the major features of common law presumptions is that they carry the third burden of proof and
much confusion in the analysis of Rule 301 results from failure to consider this. 154
Diagramming the burdens of proof
The writers have sometimes tried to illustrate burdens of proof schematically; Wigmore's seems the best known. 155 In
following this tradition, we borrow Professor Abbott's shuffleboard analogy but apply it to the more familiar football
gridiron. 156

At the kickoff of a civil trial, the plaintiff—the party who usually has the initial burdens of proof—stands waiting at the
opponents goal line at the extreme left. 157 At the very least the party wants to advance the ball out of the territory where
she would not be subject to the opponent's motion for a directed; to do this she must advance beyond the line marked “BPE”
thus satisfying the burden of producing evidence. 158 But to win the party must also satisfy the burden of persuasion by
producing evidence strong enough to carry her beyond the line marked “B/P”. 159 If the burden of persuasion is not the usual
preponderance standard but instead requires that the evidence be “clear and convincing”, then the party must advance beyond
the line marked “C & C.” However, carrying the burden of persuasion still subjects the party to risk that the jury may not
value the evidence as she does; to take the issue out of the hands of the jury, she must carry the “third burden” f proof by
advancing beyond the line marked “3d B/P.”
The opponent views the field from the right hand side of the chart. As part of his case the defendant, at the very least,
wants to push the evidence back beyond the line marked “3d B/P” to insure that the case will go to the jury. But to win, the
defendant must produce enough evidence to ensure that the plaintiff does not satisfy her burden of persuasion. Except where
the plaintiff's burden is higher, the defendant must push the evidence back beyond the midfield line marked “B/P.” To take
the case out of the hands of the jury, the defense must introduce so much evidence that the weight of plaintiff's evidence does
not even satisfy the burden of producing evidence; e.g., behind the line marked “BPE.”
In attempting to satisfy the burden of producing evidence, a party may rely on direct or circumstantial evidence, or a
combination of these. Where the party relies on direct evidence such as the testimony of a witness to the fact in issue, the
the judge plays a minimal role because of the axiom that the credibility of the witness is to be decided by the jury. The
power of the judge increases, however, when a party relies upon circumstantial evidence. Suppose, for example, that the
question is whether or not X is dead. If the party with burden of producing evidence were to call a witness who testifies
that he was present at the deathbed and funeral, the burden is clearly satisfied and the judge cannot direct a verdict against
the party. But if the party proves death by circumstantial evidence, showing that X has not been seen or heard of for years,
the court must determine whether or not a reasonable jury could infer that X is dead from this evidence. In weighing the
competing inferences, the judge has a good deal more leeway than when the issue is one of the credibility of a witness. The
law could control the judge by statutes or appellate rulings stating the sufficiency of various inferences to take a case to the
jury. However, Anglo-American law has generally inclined against prescribing rules for evaluating the strength of evidence.
The doctrine of presumptions serves much the same function in Anglo-American law that rules of weight once served in civil
law jurisprudence—that is, controlling or guiding the trial judge's evaluation of the evidence.
a386 Professor Of Law Emeritus, University of California, Los Angeles.

a409 Professor Of Law Emeritus, University of California, Los Angeles.
1
Writers
Allen, Evidence, Probability, and The Burden of Proof, 54 Ariz.L.Rev. ________(2013), available at http://ssrn.com/
abstract=2245304.
Allen, Burdens of Proof, available at ssrn.com/abstract=2146184 (2012).
Carbone & Cahn, The Past, Present and Future of the Marital Presumption (2013), available at http://ssrn.com/abstract=2316172.
Cheng, Reconceptualizing The Burden of Proof, 122 Yale L.J. 1254 (2013).
Fenner, Presumptions: 350 Years of Confusion And It Has Come To This, 25 Creighton L.Rev. 383 (1992).
Geier, Essay: Power and Presumptions; Rules and Rhetoric: Institutions and Indian Law, 1994 B.Y.U.L.Rev. 451.
Holdych, The Presumption of Negligence Rule in California: The Common Law and Evidence Code Section 669, 11 Pac.L.J. 907
(1980).
Kaplow, On the Optimal Burden of Proof, available at ssrn.com/abstract=1984694 (2012).
McCormick, Evidence, 1954, §§ 306, 307.
McCormick, Evidence, Cleary ed. 1972, § 337.
1 Morgan, Basic Problems of Evidence, 1961, pp. 18, 21.

Seymour, The Presumption of Patentability, 97 Minn.L.Rev. 907 (2013).

Stier, Revisiting The Missing Witness Inference, 44 Md.L.Rev. 137 (1985).
Stone, The Presumption of Death: A Redundant Concept?, 44 Mod.L.Rev. 516 (1981).
Thayer, Preliminary Treatise on Evidence, 1898, p. 355.
9 Wigmore, Evidence, 3d ed. 1940, § 2485.
Wilkinson, Toward A Jurisprudence of Presumptions, 67 N.Y.U.L.Rev. 907 (1992).
Winick, Presumptions and Burdens of Proof in Determining Competency To Stand Trial: An Analysis of Medina v. California and
the Supreme Court's New Due Process Methodology, 47 U. Miami L.Rev. 817 (1993).
Articles
Allen, Presumptions, Inferences, and Burden of Proof in Federal Civil Actions—An Anatomy of Unnecessary Ambiguity And A
Proposal For Reform, 1982, 76 Nw.U.L.Rev. 892, 907; Allen, Presumptions in Civil Actions Reconsidered, 1981, 66 Iowa L.Rev.
843; Hoffman & Schroeder, Burdens of Proof, 1986, 38 Ala.L.Rev. 31; Kaye, Clarifying The Burden of Persuasion: What Bayesian
Decision Rules Do and Do Not Do, 1999, 3 Int.J.Evid. & Proof 1; Thayer, The Burden of Proof, 1890, 4 Harv.L.Rev. 45, 46.
Note, Examining The Federal Circuit's Position On The Presumption of Validity During Patent Reexamination, 32 Wayne L.Rev.
1405 (1986).
Note, Constitutional Law—The Law's Strongest Presumption Collides With Mankind's Strongest Bond: A Putative Father's Right
To Establish His Relationship To His Child, 8 West N.Eng.L.Rev. 229 (1986).
Note, The Putative Father's Right To Standing To Reput The Marital Presumption of Paternity, 76 Nw.U.L.Rev. 669 (1981).
2
Complexity
1 Mueller & Kirkpatrick, Federal Evidence, 2d ed.1994, p. 308.
3
“Quantum theory”
Larson, South Dakota Evidence, 1996, p. 71.
See also
“Every writer of sufficient intelligence to appreciate the difficulties of the subject matter has approached the topic of presumptions
with a sense of hopelessness and has left it with feelings of despair.” 1 Udall, Livermore, Escher & McIlvain, Arizona Practice: Law
of Evidence, 3d ed.1991, p. 314 (quoting Morgan, Presumptions, 1937, 12 Wash.L.Rev. 255).
4
Careless use of concepts
5 Tegland, Washington Practice: Evidence, 4th ed.1999, p. 181.
5
“Slipperiest member”
McCormick, Evidence, 1954, § 308, p. 639.
See also
The current incarnation appears at McCormick, Evidence, Strong ed. 1999, § 342, p. 518.
6
Still pops up
Advisory Committee's Notes, Ala.R.Ev. 301; Commentary, Haw.R.Ev. 301.
Schaffer ex rel. Schaffer v. Weast, 2005, 126 S.Ct. 528, 533, 546 U.S. 49, 163 L.Ed.2d 387.
7
Mere “inference”
Reporter's Notes, Vt.R.Ev. 301.
8
“Semanticist's nightmare”

1 Cleckley, Handbook on Evidence for West Virginia Lawyers, 3d ed.1994, p. 155 (quoting Justice Wilson in State v. Pendry, 1976,
227 S.E.2d 210, 159 W.Va. 738).
9
Hand blamed courts
“Judges have mixed it up until nobody can tell what on earth it means … ” 18 A.L.I., Proceedings, 1941, p. 217 (quoted in 1 Goode,
Wellborn & Sharlot, Guide to The Texas Rules of Evidence, 3d ed. 2002, p. 90).
10
Fault with writers
Law Revision Council Note, Fla.Evid.Code § 90.301 (“many writers have tended to use the terms interchangeably or blur the
distinctions”).
11
Definitions banish
See, e.g., Evidence Subcommittee's Note, Okla.Evid.Code § 2301.
12
“Misunderstand”
11 Thompson, Minnesota Practice: Evidence, 3d ed. 2001, p. 92.
13
Disagreement with policy
1 Brandis & Broun on North Carolina Evidence, 5th ed.1998, p. 113.
14
Writers same
15
Instructs jury
Curran v. Kroll, 118 Conn. App. 401, 984 A.2d 763, 768 n.3 (2009) ("function of burden of proof. . . Is to allocate the risk of error
between the litigants").
16
Plaintiff loses
Texas Distributors, Inc. v. Local Union No. 100, C.A.5th, 1979, 598 F.2d 393, 402 (if the evidence in a case is such that a decision
on a point cannot be made one way or the other, the party with the burden of proof loses).
See also
Reporter's Notes, N.H.R.Ev. 301 (“If the necessary quantum of proof is a preponderance of the evidence and the evidence is evenly
balanced, the party having the burden of persuasion will lose.”).
17
Schematic
For other attempts to order the topic, see Allen, Presumptions in Civil Actions Reconsidered, 1981, 66 Iowa L.Rev. 843; Kaye,
Clarifying The Burden of Persuasion: What Bayesian Decision Rules Do and Do Not Do, 1999, 3 Int.J.Evid. & Proof 1.
18
Refer to both
State v. James, 2005, 123 P.3d 251, 256, 339 Or. 476 (rehearsing the history described in these paragraphs).
19
Identify two functions

Educational Use Only
20
“Burden of establishing”
Schaffer ex rel. Schaffer v. Weast, 2005, 126 S.Ct. 528, 533, 546 U.S. 49, 163 L.Ed.2d 387 (historically, two distinct burdens bore
the title “burden of proof”).
See also
Beatrice National Bank & Trust Co. v. Southeast Nebraska Cooperative Co., 1988, 432 N.W.2d 842, 230 Neb. 671 (using word in
Thayerian sense).
21
“Risk of nonpersuasion”
State v. James, 2005, 123 P.3d 251, 256, 339 Or. 476 (crediting Wigmore with this phrase).
22
Model Code
Model Code of Evidence, Rule 1(2), (3).
Schaffer ex rel. Schaffer v. Weast, 2005, 126 S.Ct. 528, 534, 546 U.S. 49, 163 L.Ed.2d 387 (adopting “burden of persuasion” for
the uncertainty rule).
23
Uniform Rules
U.R.E. 1(4), (5).
24
States stuck with
See, e.g., Cal.Evid Code § 110:
‘Burden of producing evidence’ means the obligation of a party to introduce evidence
sufficient to avoid a ruling against him on the issue.
Cal.Evid.Code § 115:
‘Burden of proof’ means the obligation of a party to establish by evidence a requisite
degree of belief concerning a fact in the mind of the trier of fact or the court. The burden
of proof may require a party to raise a reasonable doubt concerning the existence or
nonexistence of a fact or that he establish the existence or nonexistence of a fact by a
preponderance of the evidence, by clear and convincing proof, or by proof beyond a
reasonable doubt.
See also
California Farm Bureau Federation v. State Water Resources Control Bd., 51 Cal. 4th 421, 121 Cal. Rptr. 3d 37, 49, 247 P.3d 112
(2011) (distinguishing the two burdens).
The predecessor provisions are discussed in § 5121.1, above.
25
Adopted Model Code
1 Morgan, Basic Problems of Evidence, 1961, pp. 18, 21; McCormick, Evidence, 1954, §§ 306, 307.
26
Followed suit
See, e.g., 11 Thompson, Minnesota Practice: Evidence, 3d ed. 2001, p. 94; Larson, South Dakota Evidence, 1996, p. 71.
27
“Burden of production”
1 Giannelli & Snyder, Ohio Practice: Evidence, 1996, p. 141; 7 Blinka, Wisconsin Practice: Wisconsin Evidence, 2d ed.2001, p. 64.

28
Frolic-and-detour
Weissenberger & Duane, Federal Rules of Evidence, 2001, p. 61 (“burden of going forward” rather than the “burden of production”);
Ehrhardt, Florida Evidence, 2004, p. 92 (using both “burden of persuasion” and “burden of proof” for the uncertainty rule).
29
Courts recognize two
Washington v. Hovensa LLC, 652 F.3d 340, 345 n.2 (3d Cir. 2011).
El v. Southeastern Pennsylvania Trans. Auth. (SEPTA), C.A.3d, 2007, 479 F.3d 232, 237 n.6 (adopting the terminology above).
Trustees of Carpenters Health & Welfare Trust v. Better Building Co., Nev.1985, 710 P.2d 1379, 1381, 101 Nev. 742 (at trial the
proponent of a proposition has essentially two burdens; first, to produce evidence that tends to prove his position and, second, to
persuade the trier of fact that his evidence is entitled to greater weight than that of his opponent).
State v. James, 2005, 123 P.3d 251, 257, 339 Or. 476 (collecting state and federal cases).
30
“Burden of pleading”
1 Mueller & Kirkpatrick, Federal Evidence, 2d ed.1994, p. 311; 5 McLain, Maryland Practice: Maryland Evidence, 2001, p. 243;
Larson, South Dakota Evidence, 1996, p. 72.
31
Compendious term
1 Brandis & Broun on North Carolina Evidence, 5th ed.1998, p. 114; 5 Tegland, Washington Practice: Evidence, 4th ed.1999, p. 154.
32
Did not have to face
Indeed, the Advisory Committee's Note seems blissfully ignorant of the problem, using both “burden of establishing” and “burden
of proof” to refer to the uncertainty rule.
Payne v. Payne, 48 So. 3d 651, 654 (Ala. Civ. App. 2010) ("burden of proof" means "the duty of establishing the truth of a given
proposition or issue by such an amount of evidence as the law demands"; but it also means "the duty of producing evidence at the
beginning or at any stage of the trial in order to make or meet a prima facie case", sometimes called "the burden or duty to go forward
with evidence").
33
Avoid confusion
Kirkpatrick, Oregon Evidence, 3d ed.1996, p. 65.
34
Oregon
See Ore.Evid.Code, Rules 305 and 307, quoted in § 5121.2, above, notes 41 and 42.
State v. James, 2005, 123 P.3d 251, 257 nn. 7 and 8, 339 Or. 476 (history of burden of proof in Oregon).
35
New York
See Prop.N.Y.Evid.Code, 1980, § 301, quoted in § 5121.2, above, note 60.
36
Later changed
See Prop.N.Y.Evid.Code, 1982, § 302, quoted in § 5121.2, above, note 59.
37
Encompass the two
Comments, La.Evid.Code, Art. 301; Conference Committee Commentary, Ore.Evid.Code, Rule 305.
38
Other codifications
See Cal.Evid.Code §§ 500 to 550.

See also
Ore.R.Ev. 305 defines “burden of persuasion”; the Commentary explains that it is modeled after Cal.Evid.Code § 500.
39
Deals with burdens
Staff Notes, Ohio R.Ev. 301 (noting that like Rule 301 on which it was modeled, Rule does not define burdens of proof but leaves
them to the pre-existing case law).
See also
Professor Allen has proposed this addition to Rule 301:
(a) Definitions
1. A burden of production is a requirement that a party produce sufficient evidence on an issue to avoid a directed verdict
on that issue.
2. A burden of persuasion is a requirement that a party convince the finder of fact to a previously specified level of certainty
of the truth of an issue.
Proposal For Reform, 1982, 76 Nw.U.L.Rev. 892, 907.
40
Burdens substantive
Thayer, Burden of Proof, 1890, 4 Harv.L.Rev. 45, 69.
41
Writers exposition
See, e.g., 5 McLain, Maryland Practice: Maryland Evidence, 2001, p. 322 (substantive law fixes weight; shifting of burdens); 1
Brandis & Broun on North Carolina Evidence, 5th ed.1998, p. 123 (operation of burdens at different stages of trial); 5 Tegland,
Washington Practice: Evidence, 4th ed.1999, p. 154 (burden of persuasion fixed by substantive law; never shifts).
See also
Sabatino v. Curtiss Nat. Bank, C.A.5th, 1971, 446 F.2d 1046, 1055 (general rule is that the burden of proof never shifts; when the
party with the burden of proof makes out a prima facie case, the burden of proof does not shift to the opposite party, but he is only
required to come forward with some evidence to rebut the prima facie case).
42
Party assigned
We will subsequently take up the weight of the burden that must be borne.
43
Policy of substantive
See, e.g., 5 McLain, Maryland Practice: Maryland Evidence, 2001, p. 243; 11 Thompson, Minnesota Practice: Evidence, 3d ed. 2001,
p. 94; 5 Tegland, Washington Practice: Evidence, 4th ed.1999, p. 154.
El v. Southeastern Pennsylvania Trans. Auth. (SEPTA), C.A.3d, 2007, 479 F.3d 232, 237 (since business necessity is an affirmative
defense, defendant must prove it).
44
Fine-tune policy
Kim v. Grover C. Coors Trust, 179 P.3d 86, 90 (Colo. Ct. App. 2007) (in suit over director's dealing with corporation, burden on
director to show full disclosure, fairness to corporation, and good faith).
45
Courts formalistic

Conference Committee Commentary, Ore.Evid.Code, Rule 305 (criticizing such standards as “meaningless” but sometimes harmful).
Simpson Strong-Tie Company, Inc. v. Gore, 49 Cal. 4th 12, 109 Cal. Rptr. 3d 329, 337, 230 P.3d 1117 (2010) ("longstanding" legal
principal that when a proviso carves an exception out of the body of a statute, those relying on exception must prove it).
In re I.W., 180 Cal. App. 4th 1517, 103 Cal. Rptr. 3d 538, 544 (6th Dist. 2009) (burden on party relying on statutory exception).
Sander/Moses Productions v. NBC Studios, 2006, 48 Cal.Rptr.3d 525, 531, 142 Cal.App.4th 1086 (party has burden of proof as to
each fact essential to the claim or defense being asserted).
Meneses v. City Furniture, 34 So. 3d 71, 73 (Fla. Dist. Ct. App. 1st Dist. 2010) (burden on party claiming benefit of statutory
exception).
46
Party who will lose
Auburndale State Bank v. Dairy Farm Leasing Corp., C.A.7th, 1989, 890 F.2d 888, 893 (the party who would lose if no evidence
were presented has the burden of proof).
Cassady v. Morgan, Lewis & Bockius LLP, 2006, 51 Cal.Rptr.3d 527, 537, 145 Cal.App.4th 220 (plaintiff normally bears burden
of proof on the elements of the cause of action).
Compensation of Harris v. SAIF Corp., 1982, 642 P.2d 1147, 292 Or. 683 (burden of proof is on party who is the proponent of fact
or position and who would be unsuccessful if no evidence were introduced on either side).
As we have just seen, the function of the burdens of proof is to determine who will lose if no evidence is introduced; hence, this
standard amounts to saying that the burden of proof is on the person who has the burden of proof.
47
Asserts affirmative
Auburndale State Bank v. Dairy Farm Leasing Corp., C.A.7th, 1989, 890 F.2d 888, 893 (general rule is that party that asserts the
affirmative of an issue has the burden of proof); Mashpee Tribe v. New Seabury Corp., C.A.1st, 1979, 592 F.2d 575, 589 (normally
the party asserting the affirmative of a proposition should have the burden of proving it, but this is not an invariable rule).
Payne v. Payne, 48 So. 3d 651, 654 (Ala. Civ. App. 2010) (burden of proof rests throughout the trial on the party asserting the
affirmative of an issue).
Atlantic & Pacific Insurance Co. v. Barnes, Colo.App.1983, 666 P.2d 163, 165 (as a general rule, the burden of proof rests upon the
party who asserts the affirmative of an issue).
Beshore v. Dept. of Financial Services, Fla.App. 2006, 928 So.2d 411, 414 (stating this as “the general rule”).
Porter Tp. Initiative v. East Stroudsburg Area School Dist., 44 A.3d 1201, 1209 (Pa. Commw. Ct. 2012).
Winford v. Hawissee Apartment Complex, Tenn.App.1991, 812 S.W.2d 293, 295 (burden of proof is on the party having the
affirmative of an issue).
48
Meaningless
Cleary, Presuming and Pleading: An Essay on Juristic Immaturity, 1959, 12 Stan.L.Rev.5, 11, quoted in Conference Committee
Commentary, Ore.Evid.Code, Rule 305.
49
Follows pleading
11 Thompson, Minnesota Practice: Evidence, 3d ed. 2001, p. 94; 1 Giannelli & Snyder, Ohio Practice: Evidence, 1996, p. 142; Allen,
Presumptions, Inferences and Burden of Proof in Federal Civil Actions—An Anatomy of Unnecessary Ambiguity And A Proposal
For Reform, 1982, 76 Nw.U.L.Rev. 892, 895 (sometimes said that the burden of production follows the rules of pleading, that he
who must plead must prove).
50
Burdens coincide
51
Starts out with both
7 Blinka, Wisconsin Practice: Wisconsin Evidence, 2d ed.2001, p. 65.

See also
Clairton Slag, Inc. v. Department of General Services, 2 A.3d 765, 776 (Pa. Commw. Ct. 2010) (party who pleads certain facts has
the burden of proving them).
Vance v. My Apartment Steak House, Tex.1984, 677 S.W.2d 480, 482. (it is a well-accepted postulate of the common law that a
civil litigant who asserts an affirmative claim for relief has the burden to persuade the trier of fact of the existence of each element
of his cause of action).
52
Production follows persuasion
See, e.g. Cal.Evid.Code § 550(b); Ore.Evid.Code, Rule 307(2).
53
Burdens on plaintiff
McCormick, Evidence, Cleary ed. 1972, § 337, p. 786; 5 Tegland, Washington Practice: Evidence, 4th ed.1999, p. 154.
Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2351, 174 L. Ed. 2d 119 (2009) (when statute does not allocate burden of
proof, courts use default rule that plaintiffs should bear the risk of failing to prove their claims).
Schaffer ex rel. Schaffer v. Weast, 2005, 126 S.Ct. 528, 534, 546 U.S. 49, 163 L.Ed.2d 387 (calling this “the default rule”).
Kim v. Grover C. Coors Trust, 179 P.3d 86, 90 (Colo. Ct. App. 2007) (on the party asserting a claim).
Meneses v. City Furniture, 34 So. 3d 71, 73 (Fla. Dist. Ct. App. 1st Dist. 2010) (usually burden on party who initiates the action).
54
Disturb status quo
Schaffer ex rel. Schaffer v. Weast, 2005, 126 S.Ct. 528, 533, 546 U.S. 49, 163 L.Ed.2d 387 (quoting McCormick that the burden
should be assigned to the plaintiff “who generally seeks to change the present state of affairs”; collecting cases).
“A feature of our Anglo-American adversary system is that the task of adducing evidence rests on the parties in the proceeding.
Inherent in that system is the general rule that, as between two parties, he who desires to have judicial action taken in his behalf
has the burden of producing evidence which is a prerequisite to such action.” Wilkins v. American Export Isbrandtsen Lines, Inc.,
C.A.2d, 1971, 446 F.2d 480, 484; Keith Fulton & Sons v. New England Teamsters, C.A.1st, 1984, 762 F.2d 1124, 1133 (in a civil
suit, the burden is on the plaintiff, the one who wants to change the status quo by taking something from the defendant, to prove his
entitlement to it in every way by a preponderance of the evidence).
See also
McCormick, Evidence, Cleary ed. 1972, § 337, p. 786.
55
Even-handed
See, e.g., State, Alcoholic Beverage Control Board v. Decker, Alaska 1985, 700 P.2d 483, 485 (the party seeking a change in the
status quo has the burden of proof; hence, the applicant bears the burden in proceeding for the issuance of a license, the state in a
hearing to revoke it).
56
Favor those with power
For an example of this sort of sleight-of-hand, see Keith Fulton & Sons v. New England Teamsters, C.A.1st, 1984, 762 F.2d 1124,
1133 (describing the “status quo” as the situation after an employer has withdrawn from pension fund so that employees who seek
to hold him to pension obligations can be characterized as disturbers of the status quo).
But see
Some scholarly defenders of the status quo have used elaborate mathematical models to support an argument that the burden of proof
makes no difference in the outcome of trials; these claims are refuted in the appendix to U.S. v. Franzen, C.A.7th, 1982, 686 F.2d
1238, 1247.
See also
Winter, The Jury and the Risk of Nonpersuasion, 1971, 5 Law & Soc'y Rev. 335 (lucid discussion of the role of the burdens of proof).

57
Favor polluters
Krier, Environmental Litigation and the Burden of Proof, in Law and the Environment, Baldwin & Page eds. 1970, p. 105; Note,
Reformation of the Burden of Proof, 1986, 26 Nat.Res.J. 377.
See also
Monastersky, The 10,000 Year Test, 1988, 133 Sci.News 133, 141 (siting of nuclear waste disposal site; “Whoever has the burden
of proof in science loses”).
58
Three Ps
1 Mueller & Kirkpatrick, Federal Evidence, 2d ed.1994, pp. 314 to 316; Allen, Presumptions, Inferences And Burden of Proof in
Federal Civil Actions—An Anatomy of Unnecessary Ambiguity And A Proposal For Reform, 1982, 76 Nw.U.L.Rev. 892, 898.
Cassady v. Morgan, Lewis & Bockius LLP, 2006, 51 Cal.Rptr.3d 527, 537, 145 Cal.App.4th 220 (knowledge of and availability of
evidence to the parties, most desirable result in terms of public policy, and the probability of the existence or nonexistence of the
fact); Sander/Moses Productions v. NBC Studios, 2006, 48 Cal.Rptr.3d 525, 531, 142 Cal.App.4th 1086 (same);
Compare
Acuity Mut. Ins. Co. v. Olivas, 2007, 726 N.W.2d 258, 266, 298 Wis.2d 640 (burden of proof allocated by applying following factors:
(1) natural tendency to place the burden on the party desiring change; (2) special policy considerations such as those disfavoring
certain defenses; (3) convenience; (4) fairness; and (5) judicial estimate of probabilities).
59
Policy of substantive law
5 McLain, Maryland Practice: Maryland Evidence, 2001, p. 244.
See also
Fireman's Fund Ins. Co. v. Videfreeze Corp., C.A.3d, 1976, 540 F.2d 1171, 1175–1176 (consideration of the factors that govern
the allocation of the burden of proof and their application to the question of the burden of proof in a declaratory judgment action);
Thomas v. Wyrick, C.A.8th, 1976, 535 F.2d 407, 413–414 (discussion of the policies that affect the allocation of the burden of proof
in a habeas corpus in which it is claimed that the petitioner was denied the effective assistance of counsel).
But see
Schaffer ex rel. Schaffer v. Weast, 2005, 126 S.Ct. 528, 535, 546 U.S. 49, 163 L.Ed.2d 387 (opining that because very few cases will
end up in equipose, one can doubt that assigning the burden of proof does much to further substantive policy goals).
Acuity Mut. Ins. Co. v. Olivas, 2007, 726 N.W.2d 258, 267, 298 Wis.2d 640 (defining “policy” so narrowly as to render it nugatory
in determing which party should have the burden of proof in dispute over whether person who did work were employees of holder
of workers' compensation insurance policy).
60
Favor party
See, e.g., Felthager v. Weinberger, C.A.10th, 1976, 529 F.2d 130, 132 (purpose of presumptions under the Black Lung Act, 30
U.S.C.A. § 901 et seq. is to aid claimants with the difficult task of proving death or disability due to pneumoconiosis).
61
Position disfavored
Geddes v. Benefits Review Board, C.A.D.C.1984, 735 F.2d 1412 (policy of liberal interpretation of the Longshoremen's and Harbor
Workers' Compensation Act requires placing burden on employer to disprove that its harassment of employee was not based on
exercise of rights under the Act).
In re Estate of Chambers, 175 Cal. App. 4th 891, 96 Cal. Rptr. 3d 651, 654 (2d Dist. 2009) (purpose of requiring a higher burden of
proof to prove paternity by deceased person was to prevent looting of estates by pretenders).
62
Understood by courts

See, e.g., Gebert v. Yank, 1985, 218 Cal.Rptr. 585, 172 Cal.App.3d 544 (process at work in connection with the liability of bailees);
Lindland v. United Business Investments, 1984, 693 P.2d 20, 23, 298 Or. 318.
63
Commentators
Belton, Burdens of Pleading and Proof in Discrimination Cases: Toward a Theory of Procedural Justice, 1981, 34 Vand.L.Rev. 1205;
Comment, Policy and Proof: Shifting The Burden of Proof in a Products Liability Case, 1982, 34 Baylor L.Rev. 83; Note, Covert Sex
Discrimination: Evidentiary Burdens Under Title VII and Section 1983 Compared, 1980, 53 So.Calif.L.Rev. 1747; Note, Burden of
Proof in Equal Protection Discrimination Impact Cases: An Emerging Standard, 1977, 26 Cath.U.L.Rev. 815.
64
“Likely state of affairs”
20801, Inc. v. Parker, 249 S.W.3d 392, 397 (Tex. 2008) (in fixing burden of proof for safe harbor defense to Dram Shop Act, court
determines that bar owners are not likely to urge employees to sell booze to drunken patrons); Acuity Mut.Ins.Co. v. Olivas, 2007,
726 N.W.2d 258, 268, 298 Wis.2d 640 (since disputes over insurance coverage are common, insurer should bear burden of proof).
65
Least probable fact
Cohen, Confidence in Probability: Burdens of Persuasion in A World of Imperfect Knowledge, 1985, 60 N.Y.U.L.Rev. 385.
66
Superior access
1 Giannelli & Snyder, Ohio Practice: Evidence, 1996, p. 150.
Schaffer ex rel. Schaffer v. Weast, 2005, 126 S.Ct. 528, 536, 546 U.S. 49, 163 L.Ed.2d 387 (finding the argument plausible but far
from universally appealing given the procedures courts can use to redress knowledge imbalance such as discovery).
State cases
Sander/Moses Productions v. NBC Studios, 2006, 48 Cal.Rptr.3d 525, 531, 533, 142 Cal.App.4th 1086 (this factor alone does not
justify shift of burden of proof).
Savig v. First Nat. Bank of Omaha, 781 N.W.2d 335, 347 (Minn. 2010) (basic principle: "the burden is better placed on the party
with easier access to relevant information").
20801, Inc. v. Parker, 249 S.W.3d 392, 397 (Tex. 2008) (in assessing burden of proof on element of safe harbor defense to Dram
Shop Act, court puts burden on plaintiff to prove that bar owner pushed employees to sell drinks to drunks since proving a negative
would be difficult for the bar owner); Acuity Mut. Ins. Co. v. Olivas, 2007, 726 N.W.2d 258, 267, 298 Wis.2d 640 (ignoring this
factor on grounds that modern discovery renders it less significant);
But see
Simpson Strong-Tie Company, Inc. v. Gore, 49 Cal. 4th 12, 109 Cal. Rptr. 3d 329, 339, 230 P.3d 1117 (2010) (often one must prove
a matter that his opponent has superior access to the proof; so maxim does not top the rule that one relying on statutory exception
bears the burden of proof).
67
Party must bear
U.S. v. Continental Ins. Co., C.A.11th, 1985, 776 F.2d 962, 964(party in best position to present the requisite evidence bears the
burden of proof); Bath Iron Works Corp. v. White, C.A.1st, 1978, 584 F.2d 569, 574 (purposes of presumption of coverage under
33 U.S.C.A. § 920(a) is to place the burden of possible error on the employer who is better able to bear it); Old Ben Coal Corp.
v. Interior Bd. of Mine Op. App., C.A.7th, 1975, 523 F.2d 25, 36 (allocation of the burden of proof is primarily a matter of policy
based on experience; ne consideration would place the burden on the party who has peculiar means of knowledge enabling him to
prove or disprove the fact).
Chevron Stations v. Alcoholic Beverage Control Bd., 2007, 57 Cal.Rptr.3d 6, 16, 149 Cal.App.4th 116 (where evidence necessary
to prove a fact essential to a claim lies peculiarly within the knowledge of one of the parties, that party has the burden of going
forward on the issue).

Savig v. First Nat. Bank of Omaha, 781 N.W.2d 335, 347 (Minn. 2010) (account holders given burden of proof as the persons in the
best position to know who contributed and who withdrew from a joint account).
Clairton Slag, Inc. v. Department of General Services, 2 A.3d 765, 776 (Pa. Commw. Ct. 2010) (party more likely to have evidence
on a particular issue should bear the burden of proving it).
68
Bentham
Quoted in Thayer, The Burden of Proof, 1890, 4 Harv.L.Rev. 45, 59.
See
Clairton Slag, Inc. v. Department of General Services, 2 A.3d 765, 776 (Pa. Commw. Ct. 2010) (where nonexistence of negative fact
can be more easily proved by one party than the other, that party has the burden of proof).
69
Writers add fourth
7 Adams & Weeg, Iowa Practice: Evidence, 2002, p. 111( presumptions based on “logic, common sense, convenience or public
policy”).
See also
Larson, South Dakota Evidence, 1996, p. 72 (burdens allocated by “policy considerations, fairness, judicial estimate of probabilities,
convenience, and the tendency to place the burden on the proponent”).
70
Oregon “fairness”
Conference Committee Commentary, Ore.Evid.Code, Rule 305.
Acuity Mut. Ins. Co. v. Olivas, 2007, 726 N.W.2d 258, 266, 298 Wis.2d 640 (means disfavoring party who asserts exception to rule
or pleads a negative).
See also
71
Need for default
Weissenberger & Duane, Federal Rules of Evidence, 2001, p. 63; 5 McLain, Maryland Practice: Maryland Evidence, 2001, p. 362.
72
Requires additional
1 Saltzburg, Martin & Capra, Federal Rules of Evidence Manual, 8th ed.2002, p. 201-5.; 5 McLain, Maryland Practice: Maryland
Evidence, 2001, p. 362.
73
Troika suffices
Advisory Committee's Note, Ala.R.Ev. 301.
74
Combination
75
Proliferation of factors
Kirkpatrick, Oregon Evidence, 3d ed.1996, p. 65 (citing opinion using 11 “factors”).
76
Mis-called “presumptions”
See, e.g., Committee Commentary, Minn.R.Ev. 301 (“presumption” f legitimacy).

77
“Presumption of innocence”
Reporter's Notes, N.H.R.Ev. 301(noting impropriety of label).
78
Others
Commentary, Haw.R.Ev. 301(“presumption of sanity”).
79
Without proving anything
7 Adams & Weeg, Iowa Practice: Evidence, 2002, p. 119.
See also
“[A]ssumptions are assignments of the preliminary burden of proof or of production of evidence on the basis of rules of substantive
law, not of facts found or established in the action.” Commentary, Haw.R.Ev. 301.
80
“Assumptions”
Ashford & Risinger, Presumptions, Assumptions and Due Process in Criminal Cases, 1969, 79 Yale L.J. 165, 173.
81
Few writers
See, e.g., Ehrhardt, Florida Evidence, 2004, p. 93; 5 Tegland, Washington Practice: Evidence, 4th ed.1999, p. 182.
82
State drafters
Commentary, Haw.R.Ev. 301; Reporter's Notes, N.H.R.Ev. 301; Reporter's Notes, Vt.R.Ev. 301.
83
“Know the law”
Commentary, Haw.R.Ev. 301.
84
Statutory assumptions
Reporter's Notes, Vt.R.Ev. 301.
85
Same policy
Commentary, Haw.R.Ev. 301.
86
Determines weight
2 Jefferson, California Evidence Benchbook, 2d ed.1982, § 45.1, p. 1643; 5 McLain, Maryland Practice: Maryland Evidence, 2001,
p. 322; 7 Blinka, Wisconsin Practice: Wisconsin Evidence, 2d ed.2001, p. 65.
State v. James, 2005, 123 P.3d 251, 257, 339 Or. 476 (claims scholars confused allocation with weight of the burden).
87
Strength of policies
Griffith v. Latiolais, 48 So. 3d 1058, 1070 (La. 2010) (clear and convincing standard applies when there is a special danger of
deception or where a particular claim is disfavored on policy grounds).
Nebraska Legislature ex rel. State v. Hergert, 2006, 720 N.W.2d 372, 390, 271 Neb. 976 (function of standard of proof is to instruct
the factfinder about the degree of confidence our society thinks he should have in the correctness of factual conclusions in a particular
inquiry); Suber v. Comm'n on Crime & Delinquency, Pa.Cmwlth.Ct. 2005, 885 A.2d 678, 681 (level set by degree of concern for
accuracy of factfinding; preponderance enough for administrative proceeding removing person from state funded training program
for cheating on an exam).
2 Jefferson, California Evidence Benchbook, 2d ed.1982, § 45.1, p. 1643.

88
Catalog major
See Cal.Evid.Code § 115, quoted in note 24, above.
See also
Conference Committee Commentary, Ore.Evid.Code, Rule 305.
89
“Reasonable doubt”
5 McLain, Maryland Practice: Maryland Evidence, 2001, p. 271; 1 Brandis & Broun on North Carolina Evidence, 5th ed.1998, p. 133.
Curran v. Kroll, 118 Conn. App. 401, 984 A.2d 763, 768 (2009).
90
Threaten legitimacy
Curran v. Kroll, 118 Conn. App. 401, 984 A.2d 763, 768 (2009), appeal granted, 295 Conn. 915, 990 A.2d 866 (2010) ("law does
not demand metaphysical certainty").
91
Required by Sixth
In re Winship, 1970, 90 S.Ct. 1068, 397 U.S. 358, 25 L.Ed.2d 368.
See also
92
Limited to criminal
But see
In re Detention of Anderson, 2006, 139 P.3d 396, 401, 134 Wash.App. 309 (state bears burden of proof in civil proceeding to imprison
a sexually violent predator; must prove that offender met the criteria beyond a reasonable doubt).
93
Other constitutional
Cooper v. Mitchell Bros. Santa Ana Theater, 1981, 102 S.Ct. 172, 454 U.S. 90, 70 L.Ed.2d 262 (First and Fourteenth Amendments
do not require states to insist on proof beyond a reasonable doubt in obscenity cases).
Nebraska Legislature ex rel. State v. Hergert, 2006, 720 N.W.2d 372, 390, 271 Neb. 976 (declining to extend to impeachment trial
of civil officer).
94
“Clear and convincing”
City of Gadsden v. Scott, 61 So. 3d 296, 301 (Ala. Civ. App. 2010) (requires proof greater than a preponderance or substantial weight
but less than beyond a reasonable doubt).
Har v. Boreiko, 118 Conn. App. 787, 986 A.2d 1072, 1080 (2010) (for proof of adverse possession).
In re Anthony H., 104 Conn. App. 744, 936 A.2d 638, 646 (2007) (statute requires that failure to prove rehabilitation that will bar
termination of parental right must be proved by clear and convincing evidence).
Reid v. Estate of Sonder, 63 So. 3d 7, 10 (Fla. Dist. Ct. App. 3d Dist. 2011) (intermediate between preponderance and beyond a
reasonable doubt).
Anchorage Realty Trust v. Donovan, Me.2004, 880 A.2d 1110, 1112 (boundary by acquiescence requires proof by clear and
convincing evidence).
New Jersey Div. of Youth and Family Services v. H.P., 424 N.J. Super. 210, 37 A.3d 509, 518 (App. Div. 2011).
State v. Winchester, 145 Ohio App. 3d 92, 761 N.E.2d 1125, 1127 (8th Dist. Cuyahoga County 2001).
Ehrhardt, Florida Evidence, 2004, p. 93.


95
“Cogent and convincing”
Callen v. Internatl. Bhd. of Teamsters, Local 100, 144 Ohio App. 3d 575, 761 N.E.2d 51, 58, (1st Dist. Hamilton County 2001)
(rejecting "clear, unequivocal, and convincing" in favor of the two-headed version).
96
Attempts to define
5 McLain, Maryland Practice: Maryland Evidence, 2001, p. 278; 1 Giannelli & Snyder, Ohio Practice: Evidence, 1996, p. 143.
Har v. Boreiko, 118 Conn. App. 787, 986 A.2d 1072, 1080 (2010) ("highly probably true").
Anchorage Realty Trust v. Donovan, Me. 2004, 880 A.2d 1110, 1112 (“places in the factfinder an abiding conviction that the truth
of the factual matters are highly probable”); Suber v. Comm'n on Crime & Delinquency, Pa.Cmwlth.Ct. 2005, 885 A.2d 678, 681
(means that “witnesses must be found credible, must remember facts distinctly, and their testimony be so clear, direct, weighty, and
convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the facts at issue”).
97
Courts keep trying
City of Gadsden v. Scott, 61 So. 3d 296, 301 (Ala. Civ. App. 2010) ("firm conviction as to each essential element of the claim and
a high probability as to the correctness").
Cobb v. Leyendecker, 2005, 200 S.W.3d 924, 926, 89 Ark.App. 167 (evidence by credible witness whose memory is distinct, whose
narration is exact and in due order, and whose testimony is so direct, weighty, and convincing as to enable the factfinder to come to
a clear conviction, without hesitation, of the truth of the facts related).
In re John M., 2006, 47 Cal.Rptr.3d 281, 284, 141 Cal.App.4th 1564 (requires a high probability such that evidence is so clear as
to leave no substantial doubt).
In re Dylan C., 126 Conn. App. 71, 10 A.3d 100, 111 (2011) ("reasonable belief that the facts asserted are highly probably true").
Curran v. Kroll, 118 Conn. App. 401, 984 A.2d 763, 768 (2009) ("a very high probability").
In re Justice V., 111 Conn. App. 500, 959 A.2d 1063, 1072, (2008) ("reasonable belief that the facts are highly probably true, that
probability they are true is substantially greater than the probability that they are false").
In re Anthony H., 104 Conn. App. 744, 936 A.2d 638, 646 (2007) ("induces in the mind of the trier of fact a reasonable belief that
the facts asserted are highly probably true").
In re James Nardelli-Firearm Safety Hearing, 2007, 918 A.2d 1081, 1084, 50 Conn.Supp. 246 (evidence that induces in the mind
of the trier a reasonable belief that the fact is highly probably true, that the probability that it exists is substantially greater than the
probability that they do not exist).
Reid v. Estate of Sonder, 63 So. 3d 7, 10 (Fla. Dist. Ct. App. 3d Dist. 2011) ("of such weight that it produces in the mind of the trier
of fact a firm belief or conviction, without hesitancy" of the truth of the matter).
In re D.W., 969 N.E.2d 89, 93 (Ind. Ct. App. 2012) ("highly probable").
In re D.W., 791 N.W.2d 703, 706 (Iowa 2010) ("no serious or substantial doubts as to the correctness" of the conclusions drawn
from the evidence).
Griffith v. Latiolais, 48 So. 3d 1058, 1070 (La. 2010) ("highly probable or much more probable than its nonexistence").
In re Estate of Lobe, Minn.App.1984, 348 N.W.2d 413, 414 (“clear and convincing proof” requires more than a preponderance of
the evidence but less than proof beyond a reasonable doubt; it must show the truth of the facts asserted is highly probable).
Moore v. Bailey, 46 So. 3d 375, 384 (Miss. Ct. App. 2010) (produces "a firm belief or conviction as to the truth of the allegations";
"so clear direct, and weighty and convincing" to enable factfinder "to come to a clear conviction, without hesitancy").
In re Trust Created by Isvik, 274 Neb. 525, 741 N.W.2d 638, 648 (2007) (produces in trier of fact a firm belief or conviction that
the fact exists).
In re Guardianship of Sain, 1984, 348 N.W.2d 435, 437, 217 Neb. 96 (“clear and convincing evidence” means evidence which
produces in the trier of fact a firm belief or conviction about the existence of the fact to be proved).
New Jersey Div. of Youth and Family Services v. H.P., 424 N.J. Super. 210, 37 A.3d 509, 518 (App. Div. 2011) ("so clear, direct,
and weighty and convincing as to enable the factfinder to come to a clear conviction, without hesitancy, of the truth").

In re Adoption of C.L.B., 191 Ohio App. 3d 64, 2010-Ohio-5190, 944 N.E.2d 1190, 1193 (3d Dist. Marion County 2010) ("produce
in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established").
In re Adoption of Holcomb, 1985, 481 N.E.2d 613, 620, 18 Ohio St.3d 361 (clear and convincing standard requires that the proof
produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established).
State v. Winchester, 145 Ohio App. 3d 92, 761 N.E.2d 1125, 1127 (8th Dist. Cuyahoga County 2001) ("firm belief or conviction
of the facts to be proved").
State v. Hunter, 144 Ohio App. 3d 116, 759 N.E.2d 809, 813, (1st Dist. Hamilton County 2001) ("not equivocal but produces a firm
belief in the truth of the allegations).
Burns v. Prudential Securities, Inc., 2006, 857 N.E.2d 621, 648, 167 Ohio App.3d 809 (evidence that will produce in the mind of
the trier of fact a firm belief or conviction as to the facts).
In re Lopez, 2006, 852 N.E.2d 1266, 1273, 166 Ohio App.3d 688 (same as Burns, above, but adds that it is intermediate, more than
a preponderance and less than beyond a reasonable doubt but need not be unequivocal).
State ex rel. Dept. of Human Services v. B.S.I, 219 Or. App. 158, 182 P.3d 230, 238 (2008) (makes existence of fact "highly probable"
r is of "extraordinary persuasiveness").
State v. Kerrigan, 1984, 678 P.2d 271, 67 Or.App. 399 (“clear and convincing” means evidence that makes the truth of the facts
asserted highly probable).
In re C.T., 2008 PA Super 31, 944 A.2d 779, 782 (2008) ("clear, direct, weighting, and convincing as to enable the trier of fact to
come to a clear conviction, without hesitance, of the truth" f the fact to be proved).
98
Intermediate standard
In re Dylan C., 126 Conn. App. 71, 10 A.3d 100, 111 (2011) (but this does not mean that it lies equidistant between the two, but it
is a highly demanding standard requiring high probability).
In re Anthony H., 104 Conn. App. 744, 936 A.2d 638, 646 (2007) (says that burden is between the civil and criminal burden, then
goes on to attempt a further definition); In re Trust Created by Isvik, 274 Neb. 525, 741 N.W.2d 638, 648 (2007) (more than a
preponderance but less than beyond a reasonable doubt).
Turner v. Lutz, Tex.App.1984, 685 S.W.2d 356, 360 (“clear and convincing evidence” is an intermediate standard falling between
the standards for civil and criminal cases).
99
Doomed to failure
As will be seen shortly, the “preponderance” standard posits an inability to make up one's mind while “beyond a reasonable doubt”
starts from a feeling of belief. A bit of introspection about these two states of mind will, we think, convince most readers that there
is no smooth curve from one to the other but rather a sudden tipping at some indeterminate point between disbelief and belief. One
can, after all, go from love to hate without passing through indifference.
Har v. Boreiko, 118 Conn. App. 787, 986 A.2d 1072, 1080 (2010) (another attempt to triangulate).
100
Cases to which applies
U.S. v. English, 629 F.3d 311, 319 (2d Cir. 2011) (prosecution must prove that defendant seeking bail presents a danger to the
community by clear and convincing evidence).
State v. Baron, 156 Ohio App. 3d 241, 2004-Ohio-747, 805 N.E.2d 173, 177 (8th Dist. Cuyahoga County 2004) (sexual predator
proceeding); State v. Winchester, 145 Ohio App. 3d 92, 761 N.E.2d 1125, 1127 (8th Dist. Cuyahoga County 2001) (sexual predator
proceeding); Callen v. Internatl. Bhd. of Teamsters, Local 100, 144 Ohio App. 3d 575, 761 N.E.2d 51, 58, (1st Dist. Hamilton County
2001) (union approval of picket line violence).
1 Brandis & Broun on North Carolina Evidence, 5th ed.1998, p. 138; 5 Tegland, Washington Practice: Evidence, 4th ed.1999, p. 162.
101
Psychiatric imprisonment
Addington v. Texas, 1979, 99 S.Ct. 1804, 441 U.S. 418, 60 L.Ed.2d 323 (Due Process Clause of the Fourteenth Amendment requires
“clear and convincing evidence” to support a state decision that a person should be involuntarily committed to a state hospital for
an indefinite period).

State v. Hunter, 144 Ohio App. 3d 116, 759 N.E.2d 809, 813, (1st Dist. Hamilton County 2001) (must prove person is a sexually
violent predator by clear and convincing evidence); In re Detention of Brooks, 145 Wash. 2d 275, 36 P.3d 1034, 1044, (2001)
(overruled by, In re Detention of Thorell, 149 Wash. 2d 724, 72 P.3d 708 (2003)) (constitution requires proof by clear, cogent, and
convincing evidence before on can be imprisoned for treatment for unapproved lust).
102
Parental rights
Santosky v. Kramer, 1982, 102 S.Ct. 1388, 455 U.S. 745, 71 L.Ed.2d 599 (due process requires that proof be at least clear and
convincing before parents can be deprived of parental rights over children).
See also
In re Justice V., 111 Conn. App. 500, 959 A.2d 1063, 1072, (2008).
In re Adoption of C.L.B., 191 Ohio App. 3d 64, 2010-Ohio-5190, 944 N.E.2d 1190, 1193 (3d Dist. Marion County 2010) (adoptor
must prove by clear and convincing evidence that biological parents failed to support or communicate with child for more than one
year).
In re D.C., 128 S.W.3d 707, 715 (Tex. App. Fort Worth 2004) (clear and convincing standard of proof for termination of parental
rights also raises standard for appellate review).
103
Deported
Berahmand v. Immigration & Naturalization Service, C.A.9th, 1977, 549 F.2d 1343, 1345 (where alien has met the statutory burden of
showing lawful entry, the burden then shifted to I.N.S. to show by clear, convincing and unequivocal evidence that he was deportable);
Maldonado-Sandoval v. I.N.S., C.A.9th, 1975, 518 F.2d 278, 280 n. 3. (burden of proof on government in exclusion proceeding
requires that deportability be established by clear, unequivocal, and convincing evidence).
104
Contempt
N.L.R.B. v. J. P. Stevens & Co., Inc., C.A.5th, 1976, 538 F.2d 1152, 1160 (where the N.L.R.B. seeks an adjudication of civil contempt,
it must prove contempt by clear and convincing evidence); N.L.R.B. v. Laney & Duke Storage Warehouse Co., C.A.5th, 1970, 424
F.2d 109, 112 (in a contempt proceeding, charges that the company has violated the decree must be proved by the N.L.R.B. by clear
and convincing proof).
105
Property rights
Tokyo Shibaura Electric Co., Ltd. v. Zenith Radio Corp., C.A.3d, 1977, 548 F.2d 88 (invalidity of a patent must be proved by clear
and convincing evidence); Barr Rubber Products Co. v. Sun Rubber Co., C.A.2d, 1970, 425 F.2d 1114, 1120–1121 (in case where
a prior patent adjudication is alleged to have been invalidated by the use of perjured testimony, the claim of perjury must be proved
by clear and convincing evidence).
But see
Harrington Mfg. Co. v. Taylor Tobacco Enterprises, C.A.4th, 1981, 664 F.2d 938, 939 (burden of proving invalidity of patent
requires “clear proof”; instruction requiring clear and convincing evidence was not such a substantial variance as to require disturbing
judgment).
106
State cases
City of Gadsden v. Scott, 61 So. 3d 296, 301 (Ala. Civ. App. 2010) (must prove causation of work-related cumulative trauma by
clear and convincing medical and legal evidence).
S.D.P. v. U.R.S., 18 So. 3d 936, 939 (Ala. Civ. App. 2009) (must prove basic facts of abandonment presumption by "clear and
convincing evidence" to justify termination of parental rights).
M.C. Dixon Fam. Ptnship v. Envision Prop., Ala. Civ. App. 2005, 911 So.2d 711, 714 (one claiming by adverse possession must
prove open and notorious possession for the statutory period by “clear and convincing evidence”).
Bradley v. Southern Farm Bureau Cas. Ins. Co., D.C.Ark.1975, 392 F.Supp. 478 (fraud must be proved by clear and convincing
evidence).

Cobb v. Leyendecker, 2005, 200 S.W.3d 924, 926, 89 Ark.App. 167 (to take an oral agreement out of the statute of frauds).
In re I.W., 180 Cal. App. 4th 1517, 103 Cal. Rptr. 3d 538, 544 (6th Dist. 2009) ("clear and convincing" guides trial court but does
not limit appellate review).
In re John M., 2006, 47 Cal.Rptr.3d 281, 284, 141 Cal.App.4th 1564 (to remove child from parental custody, state must prove case
by clear and convincing evidence).
Matter of Cheryl H., 1984, 200 Cal.Rptr. 789, 153 Cal.App.3d 1098 (must be clear and convincing evidence to support an award
of custody to a nonparent).
In re Jamie M., 1982, 184 Cal.Rptr. 778, 134 Cal.App.3d 530 (though weight of burden of proof at jurisdictional hearing in juvenile
court is not a question free from doubt, use of “clear and convincing” evidence standard was not error).
Har v. Boreiko, 118 Conn. App. 787, 986 A.2d 1072, 1080 (2010) (adverse possession).
Curran v. Kroll, 118 Conn. App. 401, 984 A.2d 763, 768 (2009) (fraud).
In re James Nardelli-Firearm Safety Hearing, 2007, 918 A.2d 1081, 1084, 50 Conn.Supp. 246 (proceeding to forfeit firearms seized
under gun control statute).
Reid v. Estate of Sonder, 63 So. 3d 7, 10 (Fla. Dist. Ct. App. 3d Dist. 2011) (party seeking to reform trust must prove by clear and
convincing evidence that writing does not reflect the settlor's intent).
In re D.W., 969 N.E.2d 89, 93 (Ind. Ct. App. 2012) (termination of parental rights).
In re D.W., 791 N.W.2d 703, 706 (Iowa 2010) (order terminating parental rights requires clear and convincing evidence of the
grounds).
Hiestand v. Amalgamated Meatcutters and Butchers, 1983, 666 P.2d 671, 233 Kan. 759 (though states are not bound by 29 U.S.C.A.
§ 106 requirement that union authorization of acts be proved by clear, unequivocal, and convincing evidence, it would be adopted
as a matter of state law).
Griffith v. Latiolais, 48 So. 3d 1058, 1070 (La. 2010) (must prove by clear and convincing evidence that it would be in the best
interest of the child for one person to have sole custody).
In re Moss, 301 Mich. App. 76, 836 N.W.2d 182, 187 (2013) (clear and convincing evidence supported finding of failure to provide
proper care for children).
Moore v. Bailey, 46 So. 3d 375, 384 (Miss. Ct. App. 2010) (must prove fraud by clear and convincing evidence).
Nebraska Legislature ex rel. State v. Hergert, 2006, 720 N.W.2d 372, 390, 271 Neb. 976 (impeachment of state civil officer).
New Jersey Div. of Youth and Family Services v. H.P., 424 N.J. Super. 210, 37 A.3d 509, 518 (App. Div. 2011) (finding of abuse
or neglect).
In re Lopez, 2006, 852 N.E.2d 1266, 1272, 166 Ohio App.3d 688 (to take child from parents and grant permanent custody to state
agency).
State ex rel. Dept. of Human Services v. B.S.I, 219 Or. App. 158, 182 P.3d 230, 238 (2008) (to prove parent "unfit" to have custody
of child).
In re C.T., 2008 PA Super 31, 944 A.2d 779, 782 (2008) (grounds for termination of parental rights).
Suber v. Comm'n on Crime & Delinquency, Pa.Cmwlth.Ct. 2005, 885 A.2d 678, 681 (higher standard reserved for cases where
important individual rights are at stake; collecting cases).
107
C & C Presumptions
108
“Preponderance”
Ehrhardt, Florida Evidence, 2004, p. 92; 5 McLain, Maryland Practice: Maryland Evidence, 2001, p. 338; Kirkpatrick, Oregon
Evidence, 3d ed.1996, p. 67.
Yi v. Sterling Collision Centers, Inc., C.A.7th, 2007, 480 F.3d 505, 507 (presumption that preponderance standard applies in federal
civil cases); Henry v. Dept. Corrections, C.A.3d, 2005, 131 Fed.Appx. 847, 850 (appropriate standard in prison disciplinary hearing).
State cases
(2011) (to establish a prima facie case).

Crescent City Motors, L.L.C. v. Rafidi, 54 So. 3d 1170, 1173 (La. Ct. App. 5th Cir. 2010) (in civil case must prove prima facie case
by a preponderance of the evidence).
Mathis v. Hargrove, 2005, 888 A.2d 377, 391 n. 5, 166 Md.App. 286 (proper standard for civil action; “substantial evidence standard”
reserved for review of administrative or legislative decisions).
Rixmann v. City of Prior Lake, Minn.App. 2006, 723 N.W.2d 493, 495.
Com. v. Assorted Consumer Fireworks, 16 A.3d 554, 558 (Pa. Commw. Ct. 2011) (in civil forfeiture proceeding, commonwealth's
burden is by a preponderance of the evidence).
See also
Mutual of Enumclaw Ins. Co. v. McBride, 1982, 667 P.2d 494, 295 Or. 398 (burden of proof on issue of fraud to void a fire insurance
policy is by a preponderance of the evidence; it does not require clear and convincing proof).
109
Statutory
Ramsey v. United Mine Workers of America, 1971, 91 S.Ct. 658, 401 U.S. 302, 28 L.Ed.2d 64 (plaintiff in an antitrust action against
a labor union need only prove his case by a preponderance of the evidence; provision of 29 U.S.C.A. § 106 requiring “clear proof”
nly applies to question of authorization, participation or ratification of acts).
Klump v. U.S., 54 Fed. Cl. 167, 171 (2002) (Tucker Act claim for illegally grazing cattle).
Cobb v. Leyendecker, 2005, 200 S.W.3d 924, 926, 89 Ark.App. 167 (legislature has the power to alter the normal standard of proof
but silence is taken as desire for the usual preponderance standard); Agostino v. Township of Collier, 968 A.2d 258, 269 (Pa. Commw.
Ct. 2009) (normal burden of proof for most administrative actions is a preponderance of the evidence; applied to local civil service
commission)
See also
Comment, Preponderance of the Evidence: An Ineffective Burden of Proof in Expatriation Proceedings, 1981, 5 Ford.J.Int.L. 119.
110
Constitutional
Ellis v. Brotherhood of Railway Clerks, C.A.9th, 1982, 685 F.2d 1065, 1071 (in a civil case, the party with the burden of proof
must persuade the trier of fact by a preponderance of the evidence; no higher standard is required simply because a constitutional
issue is involved).
111
Unimpressive
Almerfedi v. Obama, 654 F.3d 1, 5 (D.C. Cir. 2011) ("a comparative judgment about the evidence to determine whether a proposition
is more likely true than not true").
Henry v. Dept. Corrections, C.A.3d, 2005, 131 Fed.Appx. 847, 850 (“more likely than not”; quoting Black's Law Dictionary).
Payne v. Payne, 48 So. 3d 651, 654 (Ala. Civ. App. 2010) ("substantial evidence").
Lillian F. v. Superior Court, 1984, 206 Cal.Rptr. 603, 606, 160 Cal.App.3d 314 (clear and convincing evidence requires a finding of
high probability and evidence so clear as to leave no substantial doubt, while preponderance merely requires that existence of fact
be more probable than its nonexistence).
Ralston Oil & Gas Co. v. July Corp., Colo.App.1985, 719 P.2d 334 (proof by a preponderance of the evidence means evidence that
leads the trier of fact to find that the existence of the fact is more probable than not).
Curran v. Kroll, 118 Conn. App. 401, 984 A.2d 763, 768 (2009) (more probable than not).
Matter of Estate of Robinson, 1984, 690 P.2d 1383, 1389, 236 Kan. 431 (“burden of proof” means preponderance of the evidence,
that is the greater weight of evidence, in view of all the facts and circumstances of the case).
Mathis v. Hargrove, 2005, 888 A.2d 377, 391 n. 5, 166 Md.App. 286 (“evidence which, when considered and compared with the
evidence opposed to it, has more convincing force and produces in the mind of the trier of fact a belief that it is more likely true
than not.
Com. v. Assorted Consumer Fireworks, 16 A.3d 554, 558 n.10 (Pa. Commw. Ct. 2011) ("more likely than not").
Arrow Electronics v. Adecco Employment, Tenn.App. 2005, 195 S.W.3d 646, 651 (sufficient to make out the more probably
hypothesis but need not arise to that degree of certainty which will exclude every other reasonable conclusion).

112
Default standard
1 Mueller & Kirkpatrick, Federal Evidence, 2d ed.1994, p. 318; Larson, South Dakota Evidence, 1996, p. 72.
Preponderance is a default rule in a second sense; if not otherwise specified, courts generally assume the burden of persuasion is by
a preponderance of the evidence. See, e.g., Prop.N.Y.Evid.Code § 301(b), quoted in § 5121, note 60.
State v. James, 2005, 123 P.3d 251, 258, 339 Or. 476 (lucid explanation of this).
113
Make up its mind
5 Tegland, Washington Practice: Evidence, 4th ed.1999, p. 156; 7 Blinka, Wisconsin Practice: Wisconsin Evidence, 2d ed.2001, p. 60.
114
Party loses
Washington v. Hovensa LLC, 652 F.3d 340, 345 n.2 (3d Cir. 2011).
Texas Distributors, Inc. v. Local Union No. 100, C.A.5th, 1979, 598 F.2d 393, 402 (if the evidence in a case is such that a decision
on a point cannot be made one way or the other, the party with the burden of proof loses).
Schocke v. State Department of Revenue, Colo.App.1986, 719 P.2d 361, 363 (if the burden of proof is by the preponderance of the
evidence and the evidence presented is evenly balanced on the issue, the trier of fact must find against the party having the burden
of proof).
Atlantic & Pacific Insurance Co. v. Barnes, Colo.App.1983, 666 P.2d 163, 165 (if a party has the burden of proof by a preponderance
of the evidence and the evidence weighs evenly on both sides, the finder of fact must resolve the question against the party having
the burden of proof).
State v. James, 2005, 123 P.3d 251, 256, 339 Or. 476.
115
Fancy analysis
Brook, Inevitable Errors: The Preponderance of Evidence Standard in Civil Litigation, 18 Tulsa L.J. 79; Cohen, Confidence in
Probability: Burdens of Persuasion in A World of Imperfect Knowledge, 1985, 60 N.Y.U.L.Rev. 385; Kaye, Apples and Oranges:
Confidence Coefficients and The Burden of Persuasion, 1987, 73 Corn.L.Rev. 54; Orloff & Stedinger, A Framework For Evaluating
The Preponderance-of-the-Evidence Standard, 1983, 131 U.Pa.L.Rev. 1159.
116
Count witnesses
Walker v. St. Louis-San Francisco Ry. Co., Okl.1982, 646 P.2d 593, 597 (presentation by one party of more witnesses than the
opposing party does not constitute preponderance of the evidence).
117
Raise doubt
McCormick, Evidence, Cleary ed. 1972, § 341.
118
Raise standard
1 Brandis & Broun on North Carolina Evidence, 5th ed.1998, p. 142 (criminal defendant must prove affirmative defenses “to the
satisfaction of the jury”; caselaw divided on how closely this approaches a preponderance standard).
119
Lower civil burden
Geddes v. Benefits Review Board, C.A.D.C.1984, 735 F.2d 1412, 1416 (claimant under Longshoremen's and Harbor Workers'
Compensation Act need not prove his case by a preponderance of the evidence but need only satisfy a lesser standard that requires
that inferences be made and doubtful questions of fact resolved in his favor).
120
Novel standards
Harrington Mfg. Co. v. Taylor Tobacco Enterprises, C.A.4th, 1981, 664 F.2d 938, 939 (burden of proving invalidity of patent requires
“clear proof”; court assumes this is something like “clear and convincing evidence”).

See also
Note, The Burden of Proof in SEC Disciplinary Proceedings: Preponderance and Beyond, 1981, 49 Ford.L.Rev. 642.
121
“Reasonable certainty”
5 Tegland, Washington Practice: Evidence, 4th ed.1999, p. 165 (applies to proof of future damages and to defect in products liability
warranty cases).
122
Do not understand
Simon & Cockerham, Civil Commitment, Burden of Proof, and Dangerous Acts: A Comparison of the Perspectives of Judges and
Psychiatrists, 1977, 5 J.Psych. & L. 571 (empirical survey finds judges are willing to commit on less than a preponderance of the
evidence).
123
Judges manipulate
Allen, Presumptions, Inferences And Burden of Proof in Federal Civil Actions—An Anatomy of Unnecessary Ambiguity And A
Proposal For Reform, 1982, 76 Nw.U.L.Rev. 892, 900.
124
B/P/E defined
See also
1 Brandis & Broun on North Carolina Evidence, 5th ed.1998, p. 114 (various names used for this burden of proof).
125
Sanction directed verdict
“The ‘burden of producing evidence’ n an issue means the liability to an adverse ruling if further evidence on the issue is not
produced.” Conference Committee Commentary, Ore.Evid.Code, Rule 307.
See also
Cal.Evid.Code § 110, quoted in note 24, above; 1 Brandis & Broun on North Carolina Evidence, 5th ed.1998, p. 116; 1 Giannelli
& Snyder, Ohio Practice: Evidence, 1996, p. 148.
126
Cannot impose
As was apparently the case in Louisiana for a number of years. Comments, La.Evid.Code, Art. 302.
127
Judge v. jury control
128
Sanction
11 Thompson, Minnesota Practice: Evidence, 3d ed. 2001, p. 94.
129
Need never hear
1 Brandis & Broun on North Carolina Evidence, 5th ed.1998, p. 122; 1 Giannelli & Snyder, Ohio Practice: Evidence, 1996, p. 148.
130
When case submitted
Conference Committee Commentary, Ore.Evid.Code, Rule 306; Kirkpatrick, Oregon Evidence, 3d ed.1996, p. 70.
131
Never shifts


Sander/Moses Productions v. NBC Studios, 2006, 48 Cal.Rptr.3d 525, 533, 142 Cal.App.4th 1086.
See also
Piper & Jerge, Shifting of the Burden of Proof in Tax Court, 1978, 31 Tax.Law. 303.
132
Burden shifts
Dennis v. White Way Cleaners, L.P., 119 S.W.3d 688, 694 (Tenn. Ct. App. 2003) (adopting federal burden shifting scheme for
employment discrimination cases).
Compare
Jackson v. U.S. Steel Corp., C.A.3d, 1980, 624 F.2d 436, 442 (district court erred in putting burden on employer to prove absence
of discrimination; in Title VII cases the burden of persuasion never shifts to the defendant, though the burden of producing evidence
may do so after complainant has made a prima facie showing of discrimination).
133
Misleading
Proposal For Reform, 1982, 76 Nw.U.L.Rev. 892, 896 (criticism of ad hoc shifting of the burden of production).
134
Does not
135
Feel need to
Kirkpatrick, Oregon Evidence, 3d ed.1996, p. 307 (distinguishing “official” and “unofficial” shifting of burdens).
But see
Century 21 Real Estate Corp. v. Lendingtree, Inc., C.A.3d, 2005, 425 F.3d 211, 222 (apparently supposing that burden of production
can be shifted back and forth without a presumption).
136
Court will direct
137
Presumptions shift
138
Follows persuasion
Conference Committee Commentary, Ore.Evid.Code, Rule 307; 5 McLain, Maryland Practice: Maryland Evidence, 2001, p. 321; 1
Giannelli & Snyder, Ohio Practice: Evidence, 1996, p. 144.
139
Never arise
140
Reasonable jury could find
141
“Prima facie case”

9 Wigmore, Evidence, 3d ed. 1940, § 2494; Larson, South Dakota Evidence, 1996, p. 73.
142
Writers exercised
McNaughton, Burden of Production of Evidence: A Function of the Burden of Persuasion, 1955, 68 Harv.L.Rev. 1382, 1385.
143
Another burden
James, Burden of Proof, 1961, 47 Va.L.Rev. 51, 56 to 57.
144
Direct verdict
9 Wigmore, Evidence, 2d ed. 1940, § 2487, pp. 282 to 283; McCormick, Evidence, Cleary ed. 1972, § 338, p. 792.
145
“Prima facie case”
See also
11 Thompson, Minnesota Practice: Evidence, 3d ed. 2001, p. 96 (noting this confusion under state law).
146
“Third burden”
This makes it easier to visualize the burdens of proof from the perspective of the party who must heft them; i.e., the lightest burden
is the first—the burden of production. The second, and heavier, burden is the burden of persuasion. The heaviest burden is the “third
burden of proof.”
Most commentators are content with Thayer's discovery that there were two burdens of proof. The only possible exception is Professor
Abbott, who seems to have misunderstood Thayer or not expressed his views as clearly as he would have wished. Abbott, Two
Burdens of Proof, 1892, 6 Harv.L.Rev. 125, 127. Professor Cross seems to recognize the phenomenon by splitting the way in which
the burden of producing evidence can be “shifted” into “tactical shifting” r carrying the burden of producing evidence and “legal
shifting,” what is here called carrying the “third burden” f proof. Cross, Evidence, 3d ed. 1967, pp. 73 to 74.
147
Shifted burden
9 Wigmore. Evidence, 3d ed. 1940, § 2489.
148
Not persuasion
Jackson v. U.S. Steel Corp., C.A.3d, 1980, 624 F.2d 436, 442 (court erred in putting burden on employer to prove absence of
discrimination; in Title VII cases the burden of persuasion never shifts to the defendant, though the burden of producing evidence
may do so after complainant has made a prima facie showing of discrimination); Marshall v. Westinghouse Electric Corp., C.A.5th,
1978, 582 F.2d 966 (effect of a prima facie case under the Age Discrimination in Employment Act, 29 U.S.C.A. § 621, only shifts
the burden of production, not the burden of persuasion).
149
Never shifts
Sabatino v. Curtiss Nat. Bank, C.A.5th, 1971, 446 F.2d 1046, 1055 (general rule is that the burden of proof never shifts; when the
party with the burden of proof makes out a prima facie case, the burden of proof does not shift to the opposite party, but he is only
required to come forward with some evidence to rebut the prima facie case).
150
Never by law
However, in allocating the other two burdens, the law does specify the party eligible to carry the “third burden.”
See

(2011) (burden of proof does not shift).
151
Some evidence
152
Rarely occurs
1 Mueller & Kirkpatrick, Federal Evidence, 2d ed.1994, p. 318; 1 Brandis & Broun on North Carolina Evidence, 5th ed.1998, p. 121.
153
Few writers
Kirkpatrick, Oregon Evidence, 3d ed.1996, p. 70; 5 Tegland, Washington Practice: Evidence, 4th ed.1999, p. 201.
154
Presumptions carry
See § 5122.1, below.
155
Wigmore's
9 Wigmore, Evidence, 3d ed. 1940, § 2487, p. 283.
But see
McNaughton, Burden of Production of Evidence: A Function of the Burden of Persuasion, 1955, 68 Harv.L.Rev. 1382, 1385 (claiming
Wigmore's schematic is “misleading”).
156
Shuffleboard
Abbott, Two Burdens of Proof, 1892, 6 Harv.L.Rev. 125, 127. For a schematic illustration, see Abbott, Degrees of Proof, and Burdens
of Proof, 1894, 2 Univ.L.Rev. 59, 61.
157
Kickoff of civil
As we shall see when we turn to Rejected Rule 303, criminal trials look quite different.
158
Burden of production
The party will never know whether she has satisfied this burden until she rests. But by that time she must also satisfy the burden of
persuasion in order to win. For this reason, writers sometimes argue that the burden of production has little practical effect and could
well be repealed. Markham, Why a “Burden of Going Forward”? 1937, 16 No.Cal.L.Rev. 12.
159
Burden of persuasion
Because the jury decides whether the party has carried the burden of persuasion, much of the conflict over the burden of persuasion
consists of wrangling over the language of the jury instruction on the weight of the burden. 5 Tegland, Washington Practice: Evidence,
4th ed.1999, p. 166.
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21B Fed. Prac. & Proc. Evid. § 5122 (2d ed.)

Federal Practice & Procedure

Link to Monthly Supplemental Service

§ 5122 Policy Background; Burdens of Proof

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a386 Professor Of Law Emeritus, University of California, Los Angeles.

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Seymour, The Presumption of Patentability, 97 Minn.L.Rev. 907 (2013).

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1 Mueller & Kirkpatrick, Federal Evidence, 2d ed.1994, p. 320.

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1 Mueller & Kirkpatrick, Federal Evidence, 2d ed.1994, p. 313.

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