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Topic: Burden of persuasion

	Burden of proof - Wikipedia, the free encyclopedia
		In jurisprudence, the burden of proof is the concept of holding one party to a dispute or one side of a debate responsible for producing a prima facie case.
		Burden of proof is one of the most important issues in litigation, and in criminal cases it is closely linked with the presumption of innocence - the principle in most modern legal systems that an accused person is "innocent until proven guilty".
		The burden of proof must be distinguished from the "burden of going forward," which simply refers to the sequence of proof, as between the plaintiff and defendant.
	en.wikipedia.org /wiki/Standard_of_proof (1138 words)

	[No title]
		Burden of Proof and Presumptions In order to understand the Supreme Court's interpretation of the causation presumption in Newman, the law regarding the burden of proof and presumptions must be examined.
		Tritton, 143 Va. 903, 918, 129 S.E. Although the burden of persuasion "does not normally shift" during a trial, the burden of persuasion on a particular issue may be cast upon the defendant, particularly in cases involving certain kinds of presumptions.
		Although the burdens of production and persuasion are generally allocated to either the plaintiff, the party seeking to disturb the status quo, the party having peculiar knowledge of the matter, or according to the pleadings, there is no fixed rule for determining how these burdens should be allocated in every instance.
	www.courts.state.va.us /txtops/1369972.txt (5287 words)

	Director, Office of Workers' Compensation Programs, DOL v. Greenwich Collieries, 512 U.S. 267 (1994)
		Burden of proof was frequently used to refer to what we now call the burden of persuasion--the notion that if the evidence is evenly balanced, the party that bears the burden of persuasion must lose.
		We assumed that burden of proof meant burden of persuasion when we said that we had to decide "the degree of proof which must be adduced by the proponent of a rule or order to carry its burden of persuasion in an administrative proceeding." Id., at 95 (emphasis added).
		Congress chose to use the term "burden of proof " in the text of the statute, and given the substantial evidence that the ordinary meaning of burden of proof was burden of persuasion, this legislative history cannot carry the day.
	supct.law.cornell.edu /supct/html/93-744.ZO.html (3569 words)

	Divorce Source: THE BURDEN OF PROOF IN DIVORCE CASES - HOW TO WIN OR LOSE DIVORCE ISSUES
		The burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.
		For the burden of persuasion to be sustained, the evidence must demonstrate that the offered hypothesis is a rational inference, that it permits the triers of fact to arrive at a conclusion grounded in a preponderance of probabilities according to common experience.
		The burden of persuasion as to the proof or disproof of the presumed fact does not shift to the party against whom the presumption is directed unless otherwise required by law.
	www.divorcesource.com /NJ/ARTICLES/gruber26.html (4793 words)

	[No title] (Site not responding. Last check: 2007-11-03)
		We found no plain error in an instruction that put an initial burden of persuasion on the defendant to prove the duress defense by a preponderance of the evidence; were the defendant to make this initial showing, the burden would then shift to the government to disprove the defense beyond a reasonable doubt.
		Santos herself had requested this instruction; her objection to the charge on appeal was not that the burden of persuasion was misplaced, but rather that the trial judge did not sufficiently explain the meaning of the "preponderance of the evidence" standard to the jury.
		We conclude that a rule that places the burden of persuasion on the defendant with regard to a justification defense to a felon-in-possession charge is constitutionally permissible, consonant with the common law, preferable for practical reasons, and faithful to the strictness of the statute into which we have read this justification defense.9 _________________________________________________________________ 9.
	vls.law.vill.edu /locator/3d/Aug2000/991530.txt (4109 words)

	FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code
		Burden of proof was frequently used to refer to what we now call the burden of persuasion - the notion that if the evidence is evenly balanced, the party that bears the burden of persuasion must lose.
		Congress chose to use the term "burden of proof" in the text of the statute, and given the substantial evidence that the ordinary meaning of burden of proof was burden of persuasion, this legislative history cannot carry the day.
		The Department of Labor's decision in the true doubt rule, to assign the burden of persuasion to the employer in cases involving harms to workers in the longshore and coal mining industries, is thus permissible and free from conflict with 7(c) of the APA.
	caselaw.lp.findlaw.com /scripts/getcase.pl?navby=case&court=us&vol=512&page=267 (8443 words)

	Converted WP file 25214
		Logic and fairness dictate that, in West Virginia, the burden of persuasion on the issue of the increase in value of separate property should be upon the party claiming its active appreciation.
		Application of this new burden of persuasion to the instant proceeding is not prejudicial, because both parties had previously been given the burden of persuasion on each of the relevant elements of the test.
		The burden of persuasion requires the party upon whom it is placed, to convince the trier of fact by a preponderance of the evidence on a given issue.
	www.state.wv.us /wvsca/DOCS/Spring99/25214.htm (8299 words)

	THE STATE'S BURDEN OF PERSUASION (Site not responding. Last check: 2007-11-03)
		Often referred to as the burden of proof, the burden of persuasion can be very significant.
		In claiming property from a holder who is also the issuer, the administrator's burden of proof as to the existence and amount of the property and its abandonment is satisfied by showing issuance of the instrument and passage of the requisite period of abandonment.
		The burden of persuasion falls to the state as it must convince the court that the property in question is in fact presumptively abandoned.
	www.unclaimedpropertylaw.com /persuasion_printer.html (638 words)

	FRE - Notes to Rule 301 (LII 2004 ed.) (Site not responding. Last check: 2007-11-03)
		Proof of coverage and of death by gunshot wound shifts the burden to the insurer to establish that the death of the insured was due to his suicide." 359 U.S. at 443, 79 S.Ct. at 925.
		Instead of imposing a burden of persuasion on the party against whom the presumption is directed, the House adopted a provision which shifted the burden of going forward with the evidence.
		The burden or persuasion remains on the party to whom it is allocated under the rules governing the allocation in the first instance.
	www.law.cornell.edu /rules/fre/ACRule301.htm (2264 words)

	COALEX REPORT 99
		The ultimate burden of persuasion that the permit should not be suspended or revoked shall rest with the permittee." (43 CFR Sec.
		4.1193 (1987)) Thus, under the federal rules, the regulatory authority bears the burden of establishing a prima facie case that the permit should be suspended or revoked, while the permittee bears the ultimate burden of proving that his or her permit should not be suspended or revoked.
		Of the states which have adopted regulations which specifically allocate the burden of proof, the language found in regulations adopted by Iowa, Ohio, Oklahoma, and Utah is essentially identical to that found in the federal regulations at 43 CFR Sec.
	www.osmre.gov /coalex/coalex99.htm (1051 words)

	Stephen T. Garcia (Site not responding. Last check: 2007-11-03)
		In this regard, after a lengthy analysis, the court decided that the burden properly belonged on UEF and that since it failed to sustain its burden, Garcia was entitled to a declaratory judgment finding that he is not liable for payments made by the UEF to and on behalf of Brennan.
		Except as otherwise provided by law, a party has the burden of persuasion as to each fact the existence or nonexistence of which is essential to the claim for relief or defense he is asserting.
		There, in discussing the burden of persuasion in an indemnity action against the insurer the court considered whether the burden should be shifted to the insurer because it had brought a declaratory action seeking immunity.
	wcc.dli.state.mt.us /SCCASES/Garcia.html (1445 words)

	Belief By Persuasion
		So, the question may be stated thus; "Is the practice of the art of persuasion a good thing to be encouraged, or is there an evil side to be avoided?" It is that question which I would like to address as briefly as possible.
		Persuasion can be used for good, but those who practice it best are up to no good.
		In summery, the only suitable alternative to persuasion is to simply state the facts, which admittedly places the onus on the hearer to decide if it is true or false.
	www.congregator.net /articles/persuasion.html (1824 words)

	Burdens of Proof in the Blogosphere (Site not responding. Last check: 2007-11-03)
		I've been thinking that the rules regarding burden of persuasion and burden of production might serve as a good proxy/analogy for looking at the tenor of debate in the blogosphere (and elsewhere).
		Most people seem to believe either that a) the other side in any debate always carries the ultimate burden of persuasion, or b) on the rare occasion when they carry the burden of persuasion, they have some presumption that (in a Morgan jurisdiction at least), would shift the burden onto their opponent.
		Instead we should engage and debate them as if we carry the burden of persuasion, and a reasonable jury is listening to and judging our arguments.
	www.handfulofsand.com /blog/archives/000513.html (516 words)

	Harvard Journal of Law and Public Policy
		The law copes with the form of uncertainty that we are calling "risk" by allowing Bill to meet his burden of persuasion by the requisite quantum of proof, that is a preponderance of the evidence.
		Thus, in a legal case, allocation of the burden may simply be a method or procedure for producing the best outcomes in the long run, or (in the language of decision theory) maximizing the expected utility of legal proceedings.
		For example, the burden of persuasion in a criminal case may be proof beyond a reasonable doubt, because the disutility of convicting an innocent person far exceeds the disutility of finding a guilty person to be not guilty: better that ten guilty persons go free than one innocent person be convicted.
	home.sandiego.edu /~lsolum/Westlaw/youproveit.htm (7714 words)

	22.24 Burden of presentation; burden of persuasion; preponderance of the evidence standard. (Site not responding. Last check: 2007-11-03)
		22.24 Burden of presentation; burden of persuasion; preponderance of the evidence standard.
		(a) The complainant has the burdens of presentation and persuasion that the violation occurred as set forth in the complaint and that the relief sought is appropriate.
		Following complainant's establishment of a prima facie case, respondent shall have the burden of presenting any defense to the allegations set forth in the complaint and any response or evidence with respect to the appropriate relief.
	www.setonresourcecenter.com /cfr/40CFR/P22_029.HTM (134 words)

	Maryland Trial Procedures,Burden of Proof,Evidence in Civil Litigation
		Because the plaintiff has the burden of proof, the plaintiff produces evidence first by calling witnesses on direct examination who are then subject to cross examination by the defense.
		The burden of persuasion specifies the degree to which the plaintiff must persuade the jury to win the case.
		Under the burden of persuasion applied in most civil cases, the jury must be more than 50% persuaded that the plaintiff is right (i.e., they must be persuaded by a "preponderance of the evidence").
	www.kramerslaw.com /step7.htm (1441 words)

	Lends His Horses v. Myrl & Roy's Paving, Inc., 2000 SD 146 (Site not responding. Last check: 2007-11-03)
		Under the odd-lot doctrine, the ultimate burden of persuasion remains with the claimant to make a prima facie showing that his physical impairment, mental capacity, education, training and age place him in the odd-lot category.
		Therefore, the central issue is whether Claimant has ultimately met its burden of persuasion: that he or she has proven injury to the degree where odd-lot benefits are an appropriate remedy.
		Though Claimant may have met his burden of production, it cannot be said, in light of the Department's findings, that he has met his ultimate burden of persuasion.
	www.sdbar.org /opinions/2000/November/2000_146.htm (2931 words)

	Patterson v. New York
		The Court held that this scheme improperly shifted the burden of persuasion from the prosecutor to the defendant and was therefore a violation of due process.
		Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.
		The placing of the burden of proof on the defense, with a lower threshold, however, is fair because of defendant's knowledge or access to the evidence other than his own on the issue.
	www.nebraskapen.org /Malice/Patterson.html (10952 words)

	Prof. Pedro A. Malavet, Civil Procedure Notes, Summary Judgment
		Persuasion: burden of convincing the trier fact, and the risk of a tie.
		Once the court has placed the burden of persuasion on a party (usually the plaintiff, except as to proof of affirmative defenses), the burden generally remains on that party throughout the litigation.
		Respondent here did not carry its burden because of its failure to foreclose the possibility that there was a policeman in the Kress store while petitioner was awaiting service, and that this policeman reached an understanding with some Kress employee that petitioner not be served.
	nersp.nerdc.ufl.edu /~malavet/civpro/notes/part09.htm (2593 words)

	New England School of Law: Professor Cox, Course Pages (Site not responding. Last check: 2007-11-03)
		B uses the words "bears the burden of persuading the court that" not "bears the burden of producing evidence by which a court could be convinced that..." C instead paraphrases the defendant's burden of persuasion on the summary judgment motion.
		He uses both "produce evidence" and "persuasive" in the same sentence, but no one should be misled into thinking that he is saying the plaintiff has the burden of persuasion on the sj motion.
		In context he is clearly referring to a burden of production; perhaps the word "persuasive" could be changed to "credible" or "believable" to avoid any possible confusion with burden of persuasion on the sj motion.
	www.nesl.edu /academics/cox/civpro/bu30214.htm (665 words)

	[No title]
		It is clearly the least used burden of all three, and it would seem very unlikely to see this burden in a mock trial.\par }\pard \s29\sa0\keep\keepn\tx-720\tx0\tx720\tx1440\tx2160\tx2880\tx3600\tx4320\tx5040\tx5760\tx6480\tx7200\tqr\tx7920 {\plain \b {\tc {How the Burdens Work} \tcl2}\par }\pard \sa0\keep\tx-720\tx0\tx720\tx1440\tx2160\tx2880\tx3600\tx4320\tx5040\tx5760\tx6480\tx7200\tqr\tx7920 {\plain In a real trial there are two burdens of proof.
		The first is the burden of persuasion, which is the burden that a party has to prove in order to reach their verdict.
		This is the burden that a party has to reach before the judge will allow the question to go to a jury.
	www.cwru.edu /orgs/undergradmocktrial/notebook/section_9.doc (694 words)

	type_Document_Title_here
		The burden of persuasion requires a party to persuade the decision maker that the party is entitled to the relief or benefits sought.
		Returning to the runner analogy, the litigant who fails to meet his or her burden of persuasion is like the runner who loses the race because he has not trained sufficiently to run faster than the other runners.
		In order to meet the burden of persuasion, the litigant bearing that burden must, in most cases, prove his or her case by a “preponderance of the evidence.” This standard of proof basically requires the litigant to demonstrate to the decision maker that the existence of the fact in question is more likely than not.
	www.azoah.com /Vol24a.htm (649 words)

	112 Wn.2d 127, BALDWIN v. SISTERS OF PROVIDENCE
		On a motion for summary judgment, the moving party has the burden of showing there is no genuine issue of material fact, but this does not relieve the nonmoving party of the burden of producing evidence that would support a genuine issue for trial.
		However, the Thompson court did not reach the issue of allocation of burdens of persuasion and production as to the first exception, and the court's language was ambiguous regarding the allocation of burdens as to the second exception.
		Placing the burden of persuasion on the party asserting breach will tend to maintain the balance between the employer's interest in running its business and the employee's interest in continued employment sought to be achieved by THOMPSON.
	www.mrsc.org /mc/courts/supreme/112wn2d/112wn2d0127.htm (3375 words)

	Iowa Code 1999SUPPLEMENT: Section 633.551 (Site not responding. Last check: 2007-11-03)
		The burden of persuasion is on the petitioner in an initial proceeding to appoint a guardian or conservator.
		In a proceeding to modify or terminate a guardianship or conservatorship, if the guardian or conservator is the petitioner, the burden of persuasion remains with the guardian or conservator.
		Once a prima facie showing is made, the burden of persuasion is on the guardian or conservator to show by clear and convincing evidence that the ward is incompetent.
	www.legis.state.ia.us /IACODE/1999SUPPLEMENT/633/551.html (308 words)

	Taxes: dilemma of deficient deficiency notices, The (Site not responding. Last check: 2007-11-03)
		When Rule 142(a) states that the "burden of proof' is on the taxpayer, it appears to be referring to the burden of 'persuasion.
		That is, under the rule, the taxpayer bears the burden of proving the facts of the case.
		The burden of proof in tax cases is complicated by the so-called "presumption of correctness" that attaches to the notice of deficiency.
	www.findarticles.com /p/articles/mi_qa3663/is_199502/ai_n8714286 (516 words)

	Stoneman (Site not responding. Last check: 2007-11-03)
		Moreover, in an uninsured employer case, the uninsured employer has both the burden of production and the burden of persuasion to show that the claim was not compensable.
		Where an employer disputes the decision of the Uninsured Employers' Fund accepting liability for a claim, the employer bears both the burden of producing evidence and the burden of persuasion with respect to the non-compensability of the claim.
		Uninsured Employers' Fund, 1998 MTWCC 53, I determined that the burden of persuasion rests on the UEF to prove that the claimant suffered a compensable injury.
	wcc.dli.state.mt.us /S/Stoneman_FFCL.htm (4014 words)

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