Also known as:burden of production of evidence · burden of production
Written by attorneys · grounded in primary & secondary sources — see below
The obligation of a party to introduce sufficient evidence on a particular issue to avoid an adverse ruling such as a directed verdict or to rebut a presumption. This duty requires only enough evidence to permit a reasonable fact-finder to decide the issue in the party's favor. It is distinct from the burden of persuasion, which requires convincing the fact-finder that the issue is more likely than not true.
Sources & Authorities
How it applies
Common Examples
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Presumption of Causation in Lease Dispute
Nova Development introduced five years of building maintenance logs showing leaks in comparable buildings almost always originated from poorly maintained common pipes. Pacific Estates responded with a premises-acceptance certificate but offered no evidence of any other cause for the flooding. Because Nova Development's logs created a presumption on causation, Pacific Estates bore the burden of producing evidence to rebut it and avoid summary judgment on that element.
Employer Response in Discrimination Claim
An employee established a prima facie case of race discrimination by showing he was qualified and replaced by someone outside his protected class. The employer offered no evidence of a legitimate nondiscriminatory reason for the termination. The employer therefore failed to meet its burden of producing evidence, and judgment was entered for the employee.
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Federal Rules
Casebooks
Hornbooks
Course Outlines
Study Supplements
St. Mary’s Honor Center v. Hicks509 U.S. 502, 506 and n.3 (1993)
Defendant's Production on Extreme Emotional Disturbance
The prosecution proved the elements of murder beyond a reasonable doubt. The defendant offered no evidence that he acted under the influence of extreme emotional disturbance. Because the defendant bore the burden of producing evidence on that affirmative defense, the jury was not instructed on it.
Patterson v. New York432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281
Taxpayer Evidence on Speech-Related Exemption
A state required veterans claiming a property-tax exemption to prove they did not advocate overthrow of the government. The veterans produced no evidence on that issue. Because they bore the burden of producing evidence to support the exemption, the exemption was denied.
Speiser v. Randall357 U.S. 513 (1958)
Prosecution Evidence on Cross-Burning Intent
The state prosecuted defendants for burning a cross on private property. The defendants offered no evidence that their conduct was not intended to intimidate. Because the prosecution bore the burden of producing evidence on the element of intent, the case proceeded to the jury on that issue.
Virginia v. Black538 U.S. 343 (2003)
Defendant's Production on Sentencing Factor
The prosecution proved the elements of the underlying offense. The defendant offered no evidence that a sentencing enhancement did not apply. Because the defendant bore the burden of producing evidence on the sentencing factor, the enhancement was imposed.
McMillan v. Pennsylvania477 U.S. 79 (1986)
Common questions
Frequently Asked
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What happens if a party fails to meet the burden of producing evidence on an issue?+
The party loses on that issue as a matter of law. A directed verdict or summary judgment may be granted against the party that fails to produce sufficient evidence.
Supporting sources
Does the burden of producing evidence ever shift during a trial?+
Yes. Once a party introduces evidence sufficient to create a presumption or establish a prima facie case, the burden of producing evidence shifts to the opposing party to rebut it.
Supporting sources
How does the burden of producing evidence differ from the burden of persuasion?+
The burden of producing evidence requires only enough evidence to permit a reasonable fact-finder to decide an issue in a party's favor. The burden of persuasion requires convincing the fact-finder that the issue is more likely than not true and never shifts.
Supporting sources
In a criminal case, who typically bears the burden of producing evidence on an insanity defense?+
The defendant must produce some evidence of insanity before the defense is submitted to the jury. The prosecution does not have to disprove insanity until the defendant meets this initial production burden.
432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281Evidence
…things, it is normally "within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion," and its decision in this regard is not subject to proscription under the Due Process Clause unless "it offends some principle of justice so rooted in the…