What's the difference between the burden of proof and the standard of proof?

The burden reflects which side must prove its case and the standard delineates by how much.

Every day, in courtrooms around the country, legal matters are being argued in front of judges and juries. In each case, the burden of proof and the standard of proof determine who has to prove what—and to what extent.

"Burden" and "standard" of proof are sometimes used interchangeably, but this article explains the important distinction between them.

Who Has the Burden of Proof?

In each case, one side has the "burden of proof." Having this burden means the party must prove its case to the "trier of fact"—judge or jury, whoever is weighing the evidence. The burden of proof can shift from one side to the other during a hearing or a trial depending on the kind of case.

For example, in a criminal trial, the prosecution has the burden of proving the defendant committed a crime. In many states, the defendant has the burden of proving certain defenses to that crime. But, particularly in criminal cases, opposing sides can be held to different standards of proof.

What Is the Standard of Proof?

The standard of proof refers to the extent to which the party with the burden of proof has to prove its case (or an element of its case). In general, the higher the stakes are, the higher the standard of proof will be.

The highest stakes arise in criminal cases, where a conviction can mean loss of liberty (incarceration). For this reason, the prosecution faces the highest standard of proof required in the American justice system and must prove every element beyond a reasonable doubt (or near certainty). On the flip side, the most common civil standard of proof is a preponderance of the evidence (a standard of more likely than not). Civil cases generally place property or rights at stake but not one's freedom, so the standard of proof is lower.

Learn more in Standards of Proof at Trial.

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