How Does Burden of Proof Work in Criminal Cases?

Generally, the state or federal prosecution bears the burden of proving the crime beyond a reasonable doubt. You as the defendant are not required to prove your innocence to be not convicted, but the prosecution also does not have to prove your guilt beyond absolute certainty. And although the general rule is the prosecutor has the burden of proof, there are cases where the defendant has the burden of proof.

How the Burden of Proof Can Shift

The prosecution may establish a fact that generally proves an element of the crime. So, the burden will now switch to the defendant. It is not necessary to disprove this fact, but to raise possible doubts about the fact. You do not have to raise doubts about every fact the prosecutor tries to prove. Just creating sufficient doubt about any point that is vital to a guilty verdict is enough. Naturally, the more convincing the prosecution’s fact is, the higher your burden is.

For example, if the prosecution shows that the police located a watch on you that was reported stolen, the defendant on a burglary charge would need to provide a reasonable explanation for how he acquired the watch. If you could show a receipt and prove the watch was a gift, you could throw the burden of proof back to the prosecutor.


In most criminal cases, the prosecutor is required to show proof that you had intent to commit a crime. For example, theft requires you to have intended to steal an item and not give it back. The intent was to obtain a specific outcome, which makes it a crime of specific intent.

With a crime of general intent, the prosecutor must prove just that you committed the crime that is in question. The prosecution does not need to prove a specific outcome from that act. For instance, for a simple assault and battery, that is a crime of general intent. It would require that you struck someone or disregarded the safety risk of hitting someone. However, assault with intent to rob is a crime of specific intent because it mandates you not only were going to hit the person, but you but not that you wanted to rob them.

Types Evidence in Civil Cases

The first type of evidence standard in a civil case is a preponderance of the evidence. This burden will decide the standard of proof the prosecution must maintain as they present evident to the jury. The standard of proof is the determining factor in the level of evidence that either you or the plaintiff must show for the jury to reach a proper determination. For the majority of civil cases, the persuasion burden is called preponderance of the evidence.

This standard mandates that the jury to come with a judgment that favors the plaintiff if the latter can show a fact or event was more likely than not to have happened. Some experts state the preponderance of evidence standard mandates the finding of at least 51% of evidence that favors the outcome of the plaintiff.

Clear and Convincing Evidence

In a number of civil cases, burden of proof is brought to a higher standard that is known as clear and convincing evidence. This requires the plaintiff to show that a fact is more likely than not to be the case. Some courts state this standard requires plaintiffs to prove there is a very high probability that the fact is true. This is a higher threshold than preponderance of the evidence standard. But it is not quite the same as the standard used in most criminal cases - beyond a reasonable doubt.

Substantial Evidence

In some administrative law proceedings, the standard of proof is usually the substantial evidence standard. This mandates the plaintiff provide sufficient evidence that a ‘reasonable mind’ could accept the available evidence to support a given conclusion.

Affirmative Defense

As the accused, you can claim there were certain circumstances that are a total defense to actions that would have been criminal otherwise. Such circumstances are known as affirmative defenses. Whether and how much you must prove such an affirmative defense will depend upon the jurisdiction.

The most well known type of affirmative defense is called self-defense. It allows you to admit you committed an illegal act, but it appeared that you needed to defend yourself from being injured or killed.

Some states require you prove that you acted in self defense by showing a preponderance of the evidence. Others will just require you to raise a reasonable basis, and the prosecution must then disprove it beyond a reasonable doubt.

Some of the other common types of affirmative defenses are:

  • Duress
  • Entrapment
  • Necessity

Whether you are the defendant carry the burden of proof and what that level of burden involves will depend upon your state and the local jurisdiction. For example, you could have to prove you were insane at the time of the crime by clear and convincing evidence.

Are You Facing a Criminal Charge in Massachusetts?

Anyone who is facing a criminal charge in Massachusetts at the state or federal level should seek the counsel of an experienced criminal defense attorney. Attorney Nathan will be the criminal defense attorney you need for the best result in your case. For a criminal defense legal consultation, please text him at (617) 905-1433.


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