Also known as: risk of nonpersuasion · burden of persuasion
Written by attorneys · grounded in primary & secondary sources — see below
An evidentiary burden requiring a party to persuade the factfinder that its version of the facts is more likely true than not. Failure to carry the burden results in loss when the evidence is evenly balanced after all proof is considered.
Dylan filed a petition for intestacy after Jordan died, presenting prima facie proof of death, venue, and heirship. Peggy countered with a digital document she claimed was Jordan's will. When the evidence on due execution remained evenly balanced, Peggy lost because she carried the risk of non-persuasion on the will, so Dylan obtained the intestacy decree.
Nova Development offered maintenance logs to create a presumption of causation against Pacific Estates. Pacific Estates introduced a notarized acceptance certificate but produced no further evidence rebutting the logs. Because Nova Development retained the risk of non-persuasion on the ultimate issue of breach, the court denied summary judgment and sent the case to the jury.
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Ricardo Rojas established a prima facie case of discriminatory discharge against Ridgeway Partners. The employer offered evidence of a legitimate reason but the trier of fact found the explanation pretextual. Rojas lost at trial because he carried the risk of non-persuasion on the ultimate question of intentional discrimination.
Robert Rivera was charged with murder after shooting his victim. He presented evidence of extreme emotional disturbance to reduce the offense to manslaughter. The jury remained in equipoise on whether the state disproved the mitigating circumstance, so Rivera was convicted of murder because the state did not bear the risk of non-persuasion on that issue.
Rosa Ruiz was prosecuted for burning a cross on private property. She introduced evidence that the act was a political protest rather than a threat. When the evidence on specific intent remained evenly balanced, the jury acquitted because the prosecution carried the risk of non-persuasion on the element of intent.
Reliance Insurance sought documents from a federal agency in a coverage action. The agency withheld materials under a claim of privilege and produced no further evidence. When the record remained in equipoise on the applicability of the privilege, the insurer lost the discovery motion because it bore the risk of non-persuasion on overcoming the asserted privilege.
The party bearing the risk of non-persuasion loses because that party has failed to persuade the factfinder that its version of the facts is more likely true than not.
Supporting sources
No. The rule shifts only the burden of production to rebut the presumption. The risk of non-persuasion remains on the party that originally carried it.
Supporting sources
The proponent of the will bears the initial burden of proof and therefore carries the ultimate risk of non-persuasion on due execution.
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The burden of production requires a party to come forward with evidence. The risk of non-persuasion is the ultimate burden that determines who loses if the factfinder remains in equipoise after all evidence is presented.
Supporting sources
…the State is to prove in order to convict, but constitutes a separate issue on which the defendant is required to carry the burden of persuasion. Pp. 206-207. 3. The Due Process Clause does not require the prosecution to prove beyond a reasonable doubt the absence of the affirmative defense, since (a) the affirmative defense does…