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Burden of Proof

Lady of Justice statue

During a trial, what are the parties called? What does each party have to prove? How much evidence should be offered in order to win over the jury? These are common questions that many ask during the jury trial process. Our experienced litigation attorneys at Heidari Law are here to help and explain exactly what happens during litigation and what each party’s responsibilities are. It is very crucial to hire an attorney that knows these different standards of proof and is capable of gathering strong evidence in support of their client. Not having sufficient legal knowledge could result in losing an entire trial.


Essentially, the “burden of proof” is a term used to refer to the amount of evidence each party is responsible for bringing in to court in order to win a trial. There are two different types of trials: a jury trial and a bench trial. A jury trial is when a verdict is determined by members of the jury, and a bench trial is when the verdict is determined by the judge. Regardless of who determines the verdict, the burden of proof does not change. Before trial, usually the judge will also explain which parties have the burden of proof, and what the standard of the proof is.

Parties to the Lawsuit

“Plaintiff” is a term used to describe the party originally bringing the lawsuit to court. The plaintiff is the one that is originally seeking damages from the other party. The defendant is the other party that is getting sued, and has to defend themselves in court. The defendant could also assert other claims against the plaintiff in court. Generally, the plaintiff has the burden of proof to establish evidence in their favor. Then, the defendant has to put on evidence that shows the contrary, or put on evidence that backs up a theory of defense as to why they took part in that act.


The plaintiff generally has the burden of proof to put on evidence. Evidence can take form in many different ways. This includes:

  1. Testimonial evidence: testimonial evidence occurs when the witness testifies. The witnesses’ words themselves amount to testimonial evidence.
  2. Demonstrative evidence:  demonstrative evidence is evidence by a witness. The witness essentially demonstrates the plaintiff’s case. When the witness is testifying on the stand, in order to explain clearly to the jury, there are different types of demonstrative evidence that can come in. This includes maps, animations, and drawn diagrams to show exactly what the witness personally experienced. This is oftentimes used when the witness is testifying to something that is very complex or hard to understand.
  3. Real evidence: real evidence refers to physical evidence that could be used to show the jury in court. For example, when a plaintiff is asserting that there was a defect in a child stroller, the child stroller used will be brought in to court as real evidence to demonstrate to the jury on how the defect occurred.
  4. Documentary evidence: documentary evidence refers to evidence the documents the different events that took place. For example, if a plaintiff is asserting a claim against a contractor for failure to complete their work, the contract that the contractor and plaintiff entered into will be brought into evidence as documentary evidence.

Burden of Proof in Civil Cases

A civil case is one where two private parties are suing each other. Usually, this includes money disputes or damages to personal property. There are different standards in which a plaintiff has to bring in evidence to back up their claims. These standards depend on what type of case is being litigated. For example, criminal cases require different standards of proof than civil cases.

  1. Clear and convincing evidence: clear and convincing evidence is a burden of proof that refers to the highest standard in civil cases. The plaintiff must bring forth “clear and convincing evidence” to show that a specific fact was substantially more likely than not to be true. Plaintiff has to show with evidence that there was a very high probability that this fact is actually true.
  2. Preponderance of the evidence: preponderance of the evidence refers to the standard of proof that the plaintiff must show for the jury to come to a conclusion. Preponderance of the evidence is the most common standard of proof in civil cases. Some jurisdictions state the preponderance of the evidence is when plaintiff is able to show that there is at least a 51% chance that the evidence favors the plaintiff.
  3. Substantial evidence: this standard of proof is not very common in civil cases. This is mostly used in administrative cases.

Burden of Proof in Criminal Cases

In criminal cases, the burden of proof is very different. Criminal cases occur when a prosecutor from the jurisdiction brings a claim against a defendant. The defendant may have taken part in a misdemeanor or a felony. Because the cases are substantially different from civil cases, criminal cases require a higher standard of proof.

  1. Beyond a reasonable doubt: the prosecutor must prove beyond a reasonable doubt that the defendant did in fact take part in the crime. The prosecutor must prove the crime by showing evidence that supports each and every element. Elements of a crime are determined by that jurisdiction. The prosecutor must bring forth enough evidence so that it cannot give rise to some type of certainty. After hearing the prosecution’s case and chief, if the jury is still uncertain, then the prosecutor has not met their burden of proof.
  2. Credible evidence: the credible evidence standard of proof is not common. In cases where credible evidence is the burden of proof, the prosecutor must show that it is worthy of the jury’s determination when reaching their verdict.

 Burden of Proof for Police Officers

Similar to the plaintiff having a burden of proof in a civil case, police officers have to meet a burden of proof when making arrests or placing someone in custody. The two different types of burden of proof that apply to police officers are:

  1. Probable cause: probable cause is a standard used by police officers when making an arrest. Probable cause is a higher standard than reasonable belief.
  2. Reasonable belief: reasonable belief is a standard used by police officers when police officers are detaining or putting a defendant in custody, the police officer must have reasonable belief that defendant engaged in some type of crime.

Get Experienced Legal Help at Heidari Law Group

Contact us today to book a free consultation to determine what type of case you have, along with which party bears the burden of proof. We encourage you to contact our experienced Los Angeles litigation attorneys. Our attorneys At Heidari Law have decades of trial experience and will work to strengthen your claim in trial. We have offices located in major cities that are easily accessible, such as, Los Angeles, Las Vegas, Fresno, Irvine, etc.

***Disclaimer: This article is created by Heidari Law Group for educational purposes. This article provides a general understanding of the law. It does not provide specific advice. By using this site and reading through this page, there is no attorney-client relationship created between you and any member of Heidari Law. Further, due to the constant change of the law, some parts of the information above may no longer be good law.

Sam Heidari

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