Also known as: risk of nonpersuasion · burden of persuasion
Written by attorneys — see sources below.
An evidentiary burden requiring a party to persuade the factfinder that its version of the facts is more likely true than not. Failure to carry the burden results in loss when the evidence is evenly balanced after all proof is considered.
Dylan filed a petition for intestacy after Jordan died, presenting prima facie proof of death, venue, and heirship. Peggy countered with a digital document she claimed was Jordan's will. When the evidence on due execution remained evenly balanced, Peggy lost because she carried the risk of non-persuasion on the will, so Dylan obtained the intestacy decree.
Nova Development offered maintenance logs to create a presumption of causation against Pacific Estates. Pacific Estates introduced a notarized acceptance certificate but produced no further evidence rebutting the logs. Because Nova Development retained the risk of non-persuasion on the ultimate issue of breach, the court denied summary judgment and sent the case to the jury.
Ricardo Rojas established a prima facie case of discriminatory discharge against Ridgeway Partners. The employer offered evidence of a legitimate reason but the trier of fact found the explanation pretextual. Rojas lost at trial because he carried the risk of non-persuasion on the ultimate question of intentional discrimination.
St. Mary's Honor Center, a halfway house operated by the Missouri Department of Corrections and Human Resources, hired Melvin Hicks as a correctional officer in August 1978. Hicks, who is black, received a promotion to shift commander, one of six supervisory positions at the facility, in February 1980. In 1983 the department conducted an investigation of St. Mary's administration that produced extensive supervisory changes the following January. John Powell became chief of custody and Hicks's immediate supervisor, while Steve Long became superintendent. Beginning in March 1984 Hicks was subjected to repeated disciplinary actions. He was suspended for five days on March 3 for violations committed by his subordinates, received a letter of reprimand on March 21 after an inmate brawl during his shift, was demoted from shift commander to correctional officer for failing to log a vehicle use on March 19, and was discharged on June 7 after a heated exchange with Powell on April 19. Hicks filed suit in the United States District Court for the Eastern District of Missouri against St. Mary's and Long. He alleged that the demotion and discharge violated Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983 because they were motivated by his race. The case proceeded through discovery to a full bench trial. After trial the District Court entered judgment for the defendants. The Court of Appeals for the Eighth Circuit reversed. The Supreme Court granted certiorari.
View caseRobert Rivera was charged with murder after shooting his victim. He presented evidence of extreme emotional disturbance to reduce the offense to manslaughter. The jury remained in equipoise on whether the state disproved the mitigating circumstance, so Rivera was convicted of murder because the state did not bear the risk of non-persuasion on that issue.
In June 1966, a jury convicted Stillman E. Wilbur, Jr. of murder in a Maine state court. The prosecution introduced Wilbur's pretrial statement describing how he fatally assaulted Claude Hebert in Hebert's hotel room after a homosexual advance, together with circumstantial evidence of the killing. Although the defense presented no evidence at trial, it argued that Wilbur lacked criminal intent or that the homicide amounted at most to manslaughter because it occurred in the heat of passion provoked by the advance. The trial court instructed the jury that an intentional and unlawful homicide would support a finding of malice aforethought unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation. After the jury twice returned for additional instructions on implied malice and the definition of heat of passion, it convicted Wilbur of murder. Wilbur appealed his conviction to the Maine Supreme Judicial Court, which upheld the trial court's instructions and affirmed the judgment. Wilbur then filed a petition for a writ of habeas corpus in federal district court. The district court granted the petition, and the Court of Appeals for the First Circuit affirmed that decision. After the Maine Supreme Judicial Court issued its opinion in State v. Lafferty reaffirming its view of state law, the Supreme Court granted certiorari in this case and remanded to the Court of Appeals for reconsideration. On remand, that court again applied Winship, this time to the Maine law as construed by the Maine Supreme Judicial Court. The Supreme Court granted certiorari a second time to consider the constitutional question presented by the Maine homicide law as applied to Wilbur's case.
View caseRosa Ruiz was prosecuted for burning a cross on private property. She introduced evidence that the act was a political protest rather than a threat. When the evidence on specific intent remained evenly balanced, the jury acquitted because the prosecution carried the risk of non-persuasion on the element of intent.
Virginia Code Annotated § 18.2-423 makes it unlawful for any person, with the intent of intimidating any person or group of persons, to burn or cause to be burned a cross on the property of another, a highway, or other public place. The statute further provides that any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons. In 1998 three individuals were separately convicted under this statute in two incidents. Barry Black was convicted for leading a cross burning at a Ku Klux Klan rally on private property in Carroll County. Richard Elliott and Jonathan O'Mara were convicted for burning a cross on the lawn of their African-American neighbor James Jubilee in Virginia Beach. The Court of Appeals of Virginia affirmed the convictions of both Elliott and O'Mara. The Supreme Court of Virginia consolidated the appeals and held the statute unconstitutional on its face. The United States Supreme Court granted certiorari in 2002 to review the decision.
View caseReliance Insurance sought documents from a federal agency in a coverage action. The agency withheld materials under a claim of privilege and produced no further evidence. When the record remained in equipoise on the applicability of the privilege, the insurer lost the discovery motion because it bore the risk of non-persuasion on overcoming the asserted privilege.
In January 2001, shortly after assuming office, President George W. Bush issued a memorandum establishing the National Energy Policy Development Group. The Group was directed to develop a national energy policy designed to help promote dependable, affordable, and environmentally sound production and distribution of energy. The President assigned agency heads and assistants, all federal employees, to serve as members of the committee. He authorized the Vice President, as chairman, to invite other officers of the Federal Government to participate as appropriate. Five months later the NEPDG issued a final report and, according to the Government, terminated all operations. Following publication of the report, Judicial Watch, Inc., and the Sierra Club filed separate actions in the United States District Court for the District of Columbia that were later consolidated. The plaintiffs alleged that the NEPDG had failed to comply with the procedural and disclosure requirements of the Federal Advisory Committee Act. Non-federal employees including private lobbyists regularly attended and fully participated in non-public meetings. Respondents contend that the regular participation of the non-Government individuals made them de facto members of the committee. The suits named Vice President Cheney, the NEPDG, government officials who served on the committee, and the alleged de facto members as defendants. The suit seeks declaratory relief and an injunction requiring them to produce all materials allegedly subject to FACA's requirements. The District Court granted the motion to dismiss in part and denied it in part. It dismissed respondents' claims against the non-Government defendants. Because the NEPDG had been dissolved, it could not be sued as a defendant, and the claims against it were dismissed as well. The District Court held that FACA's substantive requirements could be enforced against the Vice President and other Government participants on the NEPDG under the Mandamus Act and against the agency defendants under the Administrative Procedure Act. The court allowed respondents to conduct a tightly reined discovery to ascertain the NEPDG's structure and membership. The District Court denied in part the motion to dismiss and ordered respondents to submit a discovery plan. Petitioners including the Vice President sought a writ of mandamus in the Court of Appeals for the District of Columbia Circuit to vacate the discovery orders, direct the District Court to rule on the basis of the administrative record, and dismiss the Vice President from the suit. A divided panel of the Court of Appeals dismissed the petition for a writ of mandamus and the Vice President's attempted interlocutory appeal. The Supreme Court granted certiorari.
View caseThe party bearing the risk of non-persuasion loses because that party has failed to persuade the factfinder that its version of the facts is more likely true than not.
No. The rule shifts only the burden of production to rebut the presumption. The risk of non-persuasion remains on the party that originally carried it.
The proponent of the will bears the initial burden of proof and therefore carries the ultimate risk of non-persuasion on due execution.
Supporting sources
The burden of production requires a party to come forward with evidence. The risk of non-persuasion is the ultimate burden that determines who loses if the factfinder remains in equipoise after all evidence is presented.
…the State is to prove in order to convict, but constitutes a separate issue on which the defendant is required to carry the burden of persuasion. Pp. 206-207. 3. The Due Process Clause does not require the prosecution to prove beyond a reasonable doubt the absence of the affirmative defense, since (a) the affirmative defense does…