Also known as:burden of production of evidence · burden of production
Written by attorneys — see sources below.
The obligation of a party to introduce sufficient evidence on a particular issue to avoid an adverse ruling such as a directed verdict or to rebut a presumption. This duty requires only enough evidence to permit a reasonable fact-finder to decide the issue in the party's favor. It is distinct from the burden of persuasion, which requires convincing the fact-finder that the issue is more likely than not true.
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How its tested
Common Examples
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Presumption of Causation in Lease Dispute
Nova Development introduced five years of building maintenance logs showing leaks in comparable buildings almost always originated from poorly maintained common pipes. Pacific Estates responded with a premises-acceptance certificate but offered no evidence of any other cause for the flooding. Because Nova Development's logs created a presumption on causation, Pacific Estates bore the burden of producing evidence to rebut it and avoid summary judgment on that element.
Employer Response in Discrimination Claim
An employee established a prima facie case of race discrimination by showing he was qualified and replaced by someone outside his protected class. The employer offered no evidence of a legitimate nondiscriminatory reason for the termination. The employer therefore failed to meet its burden of producing evidence, and judgment was entered for the employee.
St. Mary’s Honor Center v. Hicks509 U.S. 502, 506 and n.3 (1993)
St. Mary's Honor Center, a halfway house operated by the Missouri Department of Corrections and Human Resources, hired Melvin Hicks as a correctional officer in August 1978. Hicks, who is black, received a promotion to shift commander, one of six supervisory positions at the facility, in February 1980.
In 1983 the department conducted an investigation of St. Mary's administration that produced extensive supervisory changes the following January. John Powell became chief of custody and Hicks's immediate supervisor, while Steve Long became superintendent. Beginning in March 1984 Hicks was subjected to repeated disciplinary actions. He was suspended for five days on March 3 for violations committed by his subordinates, received a letter of reprimand on March 21 after an inmate brawl during his shift, was demoted from shift commander to correctional officer for failing to log a vehicle use on March 19, and was discharged on June 7 after a heated exchange with Powell on April 19.
Hicks filed suit in the United States District Court for the Eastern District of Missouri against St. Mary's and Long. He alleged that the demotion and discharge violated Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983 because they were motivated by his race. The case proceeded through discovery to a full bench trial.
After trial the District Court entered judgment for the defendants. The Court of Appeals for the Eighth Circuit reversed. The Supreme Court granted certiorari.
Defendant's Production on Extreme Emotional Disturbance
The prosecution proved the elements of murder beyond a reasonable doubt. The defendant offered no evidence that he acted under the influence of extreme emotional disturbance. Because the defendant bore the burden of producing evidence on that affirmative defense, the jury was not instructed on it.
Patterson v. New York432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281
On December 27, 1970, Gordon Patterson shot and killed John Northrup in Glens Falls, New York. After a brief and unstable marriage, Patterson had become estranged from his wife Roberta. Roberta had resumed an association with Northrup, a neighbor to whom she had been engaged before her marriage to Patterson.
Patterson borrowed a rifle from an acquaintance and went to the residence of his father-in-law. There he observed his wife through a window in a state of semiundress in Northrup's presence. He entered the house and killed Northrup by shooting him twice in the head. Patterson was charged with second-degree murder.
At his jury trial in Warren County Court, Patterson raised the affirmative defense of extreme emotional disturbance and presented psychiatric evidence tending to show that he had been extremely emotionally disturbed when he killed Northrup. The jury was instructed that the prosecution had the burden of proving beyond a reasonable doubt each element of the crime of murder. The defendant had the burden of proving the affirmative defense by a preponderance of the evidence.
The jury convicted Patterson of second-degree murder. The Appellate Division affirmed the conviction. While appeal to the New York Court of Appeals was pending, this Court decided Mullaney v. Wilbur. The New York Court of Appeals nevertheless affirmed, distinguishing the Maine statute at issue in Mullaney and holding that New York's allocation of the burden of proof on the affirmative defense was consistent with due process. The United States Supreme Court granted certiorari limited to the question whether the burden of proof placed on the defendant by New York law is consistent with the Due Process Clause of the Fourteenth Amendment.
A state required veterans claiming a property-tax exemption to prove they did not advocate overthrow of the government. The veterans produced no evidence on that issue. Because they bore the burden of producing evidence to support the exemption, the exemption was denied.
Speiser v. Randall357 U.S. 513 (1958)
The appellants in these consolidated cases are honorably discharged veterans of World War II who sought the veterans' property-tax exemption provided by Article XIII, section 1 1/4 of the California Constitution.
Under California law applicants for the exemption must annually complete a standard form of application and file it with the local assessor. The form was revised in 1954 to add an oath by the applicant. The oath stated that the signer does not advocate the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means. Nor does the signer advocate the support of a foreign government against the United States in event of hostilities. Each appellant refused to subscribe the oath and struck it from the form which he executed and filed for the tax year 1954-1955.
The respective county assessors denied the exemptions solely because of the refusal to execute the oath. The denials rested on Article XX, section 19 of the California Constitution, adopted at the general election of November 4, 1952. That provision states that no person or organization advocating the overthrow of government by force or violence shall receive any exemption. It also bars those advocating support of a foreign government against the United States in the event of hostilities from receiving exemptions from taxes imposed by the state or its political subdivisions. To implement the amendment the Legislature enacted section 32 of the Revenue and Taxation Code. Section 32 requires every claimant for a property-tax exemption other than the householder's exemption to include on the claim a declaration that the claimant does not engage in the activities described in the constitutional amendment.
Appellant in No. 483 sued for declaratory relief in the Superior Court of Contra Costa County. Appellant in No. 484 sued in the Superior Court for the City and County of San Francisco to recover taxes paid under protest and for declaratory relief. The trial courts reached differing results. The Supreme Court of California sustained the assessors' actions against the appellants' claims of constitutional invalidity, adopting the reasoning of its opinion in the companion case First Unitarian Church v. County of Los Angeles. The United States Supreme Court noted probable jurisdiction of the appeals from the judgments of the California Supreme Court.
The state prosecuted defendants for burning a cross on private property. The defendants offered no evidence that their conduct was not intended to intimidate. Because the prosecution bore the burden of producing evidence on the element of intent, the case proceeded to the jury on that issue.
Virginia v. Black538 U.S. 343 (2003)
Virginia Code Annotated § 18.2-423 makes it unlawful for any person, with the intent of intimidating any person or group of persons, to burn or cause to be burned a cross on the property of another, a highway, or other public place.
The statute further provides that any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons. In 1998 three individuals were separately convicted under this statute in two incidents.
Barry Black was convicted for leading a cross burning at a Ku Klux Klan rally on private property in Carroll County. Richard Elliott and Jonathan O'Mara were convicted for burning a cross on the lawn of their African-American neighbor James Jubilee in Virginia Beach.
The Court of Appeals of Virginia affirmed the convictions of both Elliott and O'Mara. The Supreme Court of Virginia consolidated the appeals and held the statute unconstitutional on its face. The United States Supreme Court granted certiorari in 2002 to review the decision.
The prosecution proved the elements of the underlying offense. The defendant offered no evidence that a sentencing enhancement did not apply. Because the defendant bore the burden of producing evidence on the sentencing factor, the enhancement was imposed.
McMillan v. Pennsylvania477 U.S. 79 (1986)
The Pennsylvania legislature adopted the Mandatory Minimum Sentencing Act in 1982. The statute applies to persons convicted of enumerated felonies including third-degree murder, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery, aggravated assault, and kidnapping.
Under the Act a sentencing judge must impose a minimum term of five years' imprisonment upon finding by a preponderance of the evidence that the defendant visibly possessed a firearm during commission of the offense. The judge considers trial evidence plus any additional evidence offered by the parties at the sentencing hearing. The Act does not increase the statutory maximum penalty for the underlying felony.
Petitioner McMillan was convicted by jury of aggravated assault after shooting his victim in the right buttock during an argument over a debt. Petitioner Peterson was convicted after a bench trial of voluntary manslaughter after shooting and killing her husband. Petitioner Dennison was convicted after a bench trial of aggravated assault after shooting and seriously wounding an acquaintance. Petitioner Smalls was convicted after a bench trial of robbery after holding up a seafood store at gunpoint. In each case the Commonwealth provided notice before sentencing that it would seek application of the Act.
The four sentencing judges each held the Act unconstitutional and imposed sentences below the five-year minimum. The Commonwealth appealed all four cases to the Supreme Court of Pennsylvania, which consolidated them and upheld the statute. The United States Supreme Court granted certiorari to review the constitutional challenges.
What happens if a party fails to meet the burden of producing evidence on an issue?
The party loses on that issue as a matter of law. A directed verdict or summary judgment may be granted against the party that fails to produce sufficient evidence.
Supporting sources
Does the burden of producing evidence ever shift during a trial?
Yes. Once a party introduces evidence sufficient to create a presumption or establish a prima facie case, the burden of producing evidence shifts to the opposing party to rebut it.
Supporting sources
How does the burden of producing evidence differ from the burden of persuasion?
The burden of producing evidence requires only enough evidence to permit a reasonable fact-finder to decide an issue in a party's favor. The burden of persuasion requires convincing the fact-finder that the issue is more likely than not true and never shifts.
Supporting sources
In a criminal case, who typically bears the burden of producing evidence on an insanity defense?
The defendant must produce some evidence of insanity before the defense is submitted to the jury. The prosecution does not have to disprove insanity until the defendant meets this initial production burden.
432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281
…things, it is normally "within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion," and its decision in this regard is not subject to proscription under the Due Process Clause unless "it offends some principle of justice so rooted in the…