Also known as:burdens of persuasion · persuasion burden
Written by attorneys · grounded in primary & secondary sources — see below
The obligation of a party to convince the fact-finder of the truth of a proposition at the close of the evidence. If the fact-finder remains undecided on that proposition the party bearing the obligation loses on the issue.
Sources & Authorities
How it applies
Common Examples
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Intestacy Petition In Probate Court
Dylan files a petition seeking a declaration of intestacy after his sibling's death and supplies prima facie proof of death venue and heirship. Peggy files a competing petition to probate a digital document as the will and offers repository metadata plus testimony about estate discussions. Because Dylan bears the ultimate burden of persuasion on the elements needed to establish intestacy the court denies probate of the document and distributes the estate to Dylan when the evidence leaves the fact-finder uncertain on due execution and capacity.
Presumption In Cargo Damage Suit
Atlas Shippers sues Roadline Carriers for damage to refrigerated cargo and relies on a bill of lading presumption that intact seals mean proper handling. Roadline introduces temperature logs and warehouse records suggesting pre-loading problems. Roadline satisfies its burden of producing rebuttal evidence but Atlas retains the burden of persuasion and must still convince the jury by a preponderance that the carrier caused the loss.
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Federal Rules
Uniform Acts
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Dictionaries
Extreme Emotional Disturbance Defense
The prosecution proves every element of murder against the defendant. The defendant offers evidence of extreme emotional disturbance and asks the jury to reduce the charge to manslaughter. Because the affirmative defense does not negate an element of the crime the defendant carries the burden of persuasion on that separate issue and the jury convicts of murder when it remains unconvinced.
Patterson v. New York432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281
Peremptory Challenge Challenge
A prosecutor uses peremptory strikes to remove all Black venire members from a jury panel. The defendant objects and offers circumstantial evidence of purposeful discrimination. The defendant bears the burden of persuasion to prove discriminatory intent and the court denies the Batson claim when the record leaves the fact-finder uncertain about the prosecutor's motive.
Batson v. Kentucky476 U.S. 79, 103 (1986)
Takeover Defense Review
Directors adopt defensive measures against a hostile bid and a shareholder sues claiming breach of fiduciary duty. The plaintiff must first rebut the business judgment rule presumption. Once rebutted the directors carry the burden of persuasion to show the measures were reasonable and the court upholds the defenses when the directors fail to convince the fact-finder of entire fairness.
Unitrin, Inc. v. American General Corp.651 A.2d 1361, 1391 (Del. 1995)
Ineffective Assistance Claim
A convicted defendant moves to vacate the sentence on the ground that counsel failed to investigate mitigating evidence. The defendant must prove both deficient performance and prejudice. Because the defendant bears the burden of persuasion the court denies relief when the record leaves the fact-finder uncertain whether different investigation would have changed the outcome.
Strickland v. Washington466 U.S. 668 (1984)
Common questions
Frequently Asked
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How does the burden of persuasion differ from the burden of production?+
The burden of production requires a party to come forward with some evidence on an issue or lose as a matter of law. The burden of persuasion requires the same party to convince the fact-finder of the proposition at the close of all evidence or lose if the fact-finder remains undecided.
Does a presumption shift the burden of persuasion in a civil case?+
No. Under the governing rule a presumption shifts only the burden of producing evidence to rebut the presumed fact. The burden of persuasion remains on the party who originally bore it.
Who bears the burden of persuasion on an affirmative defense in a criminal case?+
The defendant ordinarily bears the burden of persuasion on an affirmative defense that does not negate an element of the crime. Due process permits the state to assign that burden to the defendant when the defense constitutes a separate issue.
In a will contest under the Uniform Probate Code who carries the burden of persuasion on lack of capacity?+
The contestant of the will carries the burden of persuasion on lack of testamentary capacity. The proponent carries the burden on due execution.
466 U.S. 668 (1984)Criminal Procedure
…658, 104 S.Ct., at 2046. But the adjectives "strong" and "heavy" might be read as imposing upon defendants an unusually weighty burden of persuasion. If that is the majority's intent, I must respectfully dissent. The range of acceptable behavior defined by "prevailing professional norms," ante, at 688, seems to me sufficiently broad to…
Criminal Law Constitutional ProtectionsConstitutional protections of accused persons · Arrest, search, and seizure [Fourth Amendment]NEXTGENFoundational