Chapter 3
Chapter 6
Burden of Proof & Presumptions

3 Different “Burdens of Proof”
    • Preponderance of the Evidence (medium)
    • Clear and Convincing (higher)
    • Beyond a Reasonable Doubt (highest)

“Preponderance of the Evidence”
    • Evidence that has more convincing force than that opposed to it.
    • If the evidence is so evenly balanced that such that neither side “preponderates” on an issue, the party who had the burden of proving it loses.
    • Applies to most civil cases.

“Clear and Convincing Proof”
    • The trier of fact must find that it is "highly probable" that the fact is true.
    • Applies in some quasi-criminal matters.

“Beyond a Reasonable Doubt”
   •In all criminal cases, the state has the burden of proving every essential element of the crime beyond a reasonable doubt.
   • Constitutionally required by the 14th Amendment “Due Process” clause.
   • It is defined as not a mere “possible doubt,” but an abiding conviction of the truth of the charge after considering the entire case.

Shifting the Burden of Proof
    • The overall BOP to prove the defendant's guilt emains on the prosecution throughout the trial.
    • It never shifts to the defendant to prove his/her innocence.
       • Example: Intent
             • 1979: “The law presumes that a person intends the ordinary consequences of his voluntary acts.”
                                          Overruled. Sandstrom v. Montana
             • 1983: “Every person is conclusively presumed to intend the natural and necessary consequences of his act.”
                                          Overruled. Connecticut v. Johnson
              • 1986: “the acts of a person of sound mind and discretion are presumed to be a product of the person’s will, but the presumption may be rebutted.”
                                         Overruled. Francis v. Franklin   

     • So what can the jury be told, if anything?
             • A “permissive presumption”
                    • Suggests a possible conclusion, but does not require it to be drawn.
             • Example:
                    • Intoxication: If you find that the defendant has a BAL over the legal limit, you may, but are not required to, infer that he was an unsafe driver.
    • Conclusive or Mandatory presumptions (whether rebuttableor not) are generally unconstitutional.
    • Permissive presumptions or inferences are ok.
            • "may butr are not required to infer"
            • "is a factor which you can consider"

May the Burden shift on any issue?
    • While the burden on an element of the crime may not shift to the defendant, the BOP on an affirmative defense may shift to the defendant.
    • It depends on whether the issue is treated as an affirmative defense or rebuttal .
    • Rebuttal of prosecution evidence- only the burden of going forward shifts- burden of proof does not shift.
    • Legally recognized affirmative defense- burden shifts to defendant.

Specific Affirmative Defenses
    • Majority view- rebuttal of prosecution evidence only,
       • BOP does not shift and remains on the prosecution. (California & Feds)
    • Minority view- affirmative defense
       • burden shifts to defendant to establish the alibi by a preponderance of the evidence.

Self Defense
    • Vast majority view- rebuttal of prosecution evidence,
       • BOP does not shift and remains on the prosecution. (California).
    • Small minority view- affirmative defense
       • burden shifts to the defendant to establish self defense by a preponderance of the evidence.

    • Majority view- affirmative defense
       • burden shifts to the defendant to establish that he was legally insane.
          • California- insanity must be shown by a preponderance of the evidence.
          • Feds- insanity must be shown by clear and convincing evidence.
    • Minority view- BOP does not shift.
       • The defendant must raise the issue by credible evidence, but the burden then is on the prosecution to prove that the defendant was legally sane.