How to Win a Deadly-Force Court Case by Understanding the Burden of Proof

Victory in any court case involves many factors, not just for your attorney but for you as the defendant or plaintiff. While you are most likely not an attorney, you, as a layperson, need to have a general understanding of what you are doing in your court case to “save your bacon” and not spend the rest of your life in prison. I am not an attorney, am not licensed in any state to offer legal services, and am not practicing law, but learned some practical things when I studied law and taught it at a university for several years as a practitioner and served as a Director of Legal Affairs for an organization. So while I am not offering legal opinions or advice, I want to help you in my simplified, non-attorney, general educational way to get started in knowing some important aspects of the court process and Burden of Proof. Some of these things I learned the “hard way” in my state. It is best for you if you validate my layman’s opinions here according to your specific jurisdiction and applicable state laws.

What is Burden of Proof and Its Three Primary Standards?

In Latin, “onus probandi” means the Burden of Proof. In essence, the Burden of Proof is the minimum level of proof needed to win a court case. It is the obligation to provide sufficient evidence for claims one makes in court. So, it is crucial to not only know generally what Burden of Proof means but to know the different standards of proof in different circumstances and for you and your attorney to be able to successfully show proper Burden of Proof in court.

In any court case, there are at least three primary standards of proof:

1. Proof Beyond a Reasonable Doubt
2. Preponderance of the Evidence
3. Clear and Convincing Evidence.

However, depending on the jurisdiction, state, and type of legal action, the legal standard to satisfy the Burden of Proof in U.S. litigation varies and may also include:

• probable cause in acquiring a warrant or arrest proceeding;
• reasonable belief as part of establishing probable cause;
• reasonable suspicion in cases involving police stop and searches;
• some credible evidence in cases necessitating immediate intervention, like child protective services disputes; and
• some evidence in cases involving inmate discipline.

So, on a scale from 0 to 100%,  a score of 100 % means everything has been completely proven. While a score of only 10 % means that very little has been proven, near zero. Generally, Burden of Proof describes the standard or degree of worth that a party seeking to prove a fact in court must satisfy to have that fact legally established. There are different standards for different circumstances.

Common Ways Some Avoid Providing Proof

It is interesting to recognize that some people intentionally try to avoid providing appropriate evidence to substantiate their claims. Usually, to “muddy the waters” or introduce confusion to opposing council or parties or create delays to their own advantage. Be aware that these strategies may occur, and be prepared, just in case. To avoid losing a court case and to recognize avoidance strategies, realize some may dodge their responsibility of providing evidence and may do so either serendipitously or deliberately, in generally four different ways:

1. Shifting the Burden of Proof to someone else by insisting that they prove the validity of their opposing claim;
2. Shifting the Burden of Proof to someone else by insisting that they disprove the claim;
3. Making assumptions and pretending they already offered evidence when they have not done so; and
4. Denying they need to offer any evidence to support their claim.

Proof in Criminal Court versus Civil Court Cases

The party that initiates the dispute must also provide evidence for their case. In a civil claim for personal injury, the plaintiff files the case and must prove their right to compensation. Likewise, if the state files charges in a criminal defense case, the Burden of Proof lies with the state.

So in criminal cases, the burden of proving the defendant’s guilt is on the prosecution, and they must establish that fact Beyond a Reasonable Doubt. In civil cases, the plaintiff has the burden of proving their case by a Preponderance of the Evidence, which means simply that the plaintiff merely needs to show that the fact in dispute is more likely than not to have occurred. So, 51% usually meets the civil Burden of Proof to believe that each element of the claim is more likely true than not true. For example, Susan sues Joe due to injuries she sustained in a car crash. So Susan as the plaintiff, must convince the court that it is more probable than not that Joe caused the crash (e.g., ran a stop light), resulting in her injuries.

A “Preponderance of the Evidence” and “Beyond a Reasonable Doubt” are different standards, requiring different amounts of proof. When evidence is presented in a criminal case, the prosecution has to prove each element of the case Beyond a Reasonable Doubt in the minds of the jury in order to get a conviction.

Burden of Proof: Production and Persuasion

The Burden of Proof is often said to consist of two distinct but related concepts: the burden of production and the burden of persuasion. The burden of production is the obligation to present evidence to the judge or jury. The burden of persuasion is the duty to convince the judge or jury to a certain standard, such as Beyond a Reasonable Doubt. There may be a Jury Trial or a Judge (Bench) Trial.

Jury Trial Or Judge (Bench) Trial

Judges usually have only one Jury Trial in any one day, but a judge may have multiple Bench Trials in a day, so the latter are easier to schedule. Also, Bench Trials are quicker when a defendant wants a case resolved quickly.

The party that does not carry the Burden of Proof carries the benefit of the assumption of being correct. They are presumed to be correct until the burden shifts after the presentation of evidence by the party bringing the action. An example is in a criminal case, where there is a presumption of innocence by the defendant. Fulfilling the Burden of Proof effectively captures the benefit of assumption, passing the burden of proof off to another party.

Burden of Proof as a Prosecutor

For a prosecutor to win their case, they have to prove you guilty Beyond a Reasonable Doubt. Again, understand that this is the highest standard of proof in the law for criminal cases. In civil cases, the plaintiff (the party bringing the action) has the Burden of Proof. So, for example, it is necessary for the accident victim to present evidence that convinces the judge or jury that the defendant caused the plaintiff’s injuries.

The prosecutor’s job is to present evidence that proves your guilt. The prosecution must show there is no other reasonable explanation for the evidence it presents at trial.

If the prosecutor cannot meet their burden, your case should be dismissed, or you should be found not guilty. During a trial, a jury or judge will hear and examine all of the evidence to determine whether you should be found guilty of the charges alleged.

Burden of Proof as a Defendant

During your trial, as a defendant, you will have the ability to question and examine any evidence the prosecutors bring against you. But you do not have to.

As a defendant, you do have the opportunity to present your case to refute the prosecutor’s claims. If you choose to do this, you can present your own witnesses and evidence to show that the prosecutor’s claims do not meet the necessary Burden of Proof for conviction.

Some jurisdictions and states require a defendant to prove any affirmative defense they allege to their charge, such as “self-defense,” “necessity,” or entrapment. Other jurisdictions require the prosecution to disprove your affirmative defense. So know the procedures and protocols in your jurisdiction and/or state.

In my state of Florida, self-defense is a type of affirmative defense used to avoid the legal effect of an otherwise unlawful violent act. So in Florida, people can avoid criminal prosecution for assault if they can establish that they used force in self-defense and were not the initial aggressor. In Florida, the Stand Your Ground Law provides immunity from prosecution, as opposed to an affirmative defense that a defendant would need to assert in Trial after being arrested and charged… “if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

If the plaintiff in a civil case demonstrates it’s more likely true than not true to each element of the case, then they win because their Burden of Proof is Preponderance of the Evidence, not Beyond a Reasonable Doubt.

What Does “Proof Beyond a Reasonable Doubt ” Mean?

Proof Beyond a Reasonable Doubt means there is a moral degree of certainty that something is accurate, and a reasonable person could not disagree. It means enough evidence is produced for a sensible person to conclude that something is true.

How Much Evidence is Needed to Create Reasonable Doubt?

It is interesting to recognize that a party may not need to provide any evidence to create reasonable doubt. In some cases, available evidence may not be able to formulate reasonable doubt. So, it depends on the strength of the plaintiff’s case, witness testimonies, and the type and amount of evidence provided. It is possible for a defendant to defend their case by presenting their own evidence or by questioning the plaintiff’s evidence.

What is Clear and Convincing Evidence versus Proof?

The Clear and Convincing Evidence Standard is used in both civil and criminal trials. And it is more rigorous to meet than the Preponderance of Evidence Standard but less rigorous to meet than proving evidence Beyond A Reasonable Doubt. Clear and Convincing Evidence refers to pieces of information, data, or facts, while proof is the logical conclusion derived from studying the evidence. It means that the party must present evidence that leaves you with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true. The evidence is highly and substantially more likely to be true than untrue. States vary with regard to which standard of proof they require. Claims which involve fraud, wills, and withdrawing life support, for example, will typically require the Clear and Convincing Evidence Standard. So you can understand why it is so important to get your own attorney who has special knowledge of the law.

Burden of Proof and Preliminary Hearings

As I said earlier here, the Burden of Proof in a criminal trial is that you committed the crime Beyond a Reasonable Doubt. Some states require preliminary hearings. In most of these hearings, the evidence against you at a preliminary hearing is presented similarly to how it will be presented at a trial, but it is not subject to the same standard of proof. Rather at most preliminary hearings, only probable cause is used as the standard for the case to proceed forward in the courts. So whether it is California or Florida, the burden of proof in a preliminary hearing is only probable cause… whether the facts would lead a person of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime. The burden evaluates whether a person could reasonably think that a crime occurred. So, the purpose of a preliminary hearing is not to establish guilt or innocence but to protect a defendant from unfounded or baseless criminal charges. If the judge in your preliminary hearing finds that probable cause exists, your case will proceed to trial.

The O.J. Simpson Case: Classic Example of Winning in Criminal Court and Losing in Civil Court

A defendant can be tried in both civil and criminal courts and can win and/or lose in either. Classic court examples are the O.J. Simpson trials. Simpson was acquitted of the murder of his ex-wife Nicole and her friend Ronald Goldman in criminal court. But, in his civil trial, he was found liable for their wrongful deaths. The trial spanned eleven months, from November 1994 to October 1995. Though prosecutors argued that Simpson was implicated by a significant amount of forensic evidence, Simpson was ultimately acquitted of both counts of murder. Even though police found crucial DNA evidence that indicated that Simpson was involved in committing the murders in criminal court. Simpson threatened suicide while involved in the infamous car chase in his Ford Bronco on the interstate.

Initially, O.J. pleaded not guilty on both accounts of murder in the 1995 criminal trial. Even though the prosecution had no fingerprints, witnesses, or murder weapon, they were confident that they would convict Simpson. They relied on crucial DNA evidence to prosecute him. Some of the evidence included:

• Bloody footprints of shoes that matched shoes Mr. Simpson owned;
• Hair Samples located on the bodies and crime scene; and
• Articles of clothing that were located at Mr. Simpson’s residence.

The prosecution called DNA experts to testify that blood found at the crime scene matched Simpson’s blood and the blood from both of the victims. The experts explained that the blood sample obtained within the Ford Bronco and at Mr. Simpson’s residence were direct matches, leaving the jury to believe that O.J. had tracked the blood back to his residence after he committed the murders. Although there was substantial DNA evidence against Mr. Simpson, some say the handling of this evidence by the L.A. Police Department was unprofessional. The way it was handled by the police led the courts and jury to believe that something was not right. The defense highlighted the faults of the LAPD and how Mr. Simpson was framed. The Defense claimed that the police failed to conduct a well-constructed, proper investigation. Defense counsel Johnnie Cochran stated that the main police involved within the case were racist. He argued that police Detectives tried to frame Mr. Simpson of the crime by planted crucial evidence like the bloody glove in his residence. This led to the famous court act where O.J. Simpson was tried on the murder gloves discovered in his home, and to much surprise, the gloves did not fit.

After months of deliberation and numerous witnesses within the criminal trial, 12 juries finally came to a verdict and found Simpson not guilty in both counts of murder. The jury was mostly African American. Cochran and the defense team persuaded the jury that there was “reasonable doubt” concerning the DNA evidence. Society was shocked by this verdict due to the DNA evidence presented and how obviously the evidence pointed toward Mr. Simpson.

After Simpson’s criminal trial concluded, a civil lawsuit was immediately filed against him by the parents of Ronald Goldman, Nicole’s friend. The outcome of this trial was different from that of the criminal trial. The lawyer for the Goldman family brought crucial evidence into this trial that was not involved within the criminal trial. A lie detector test that Mr. Simpson completed after the crime was examined, which showed how he had failed this test. This test involved questions asking if he had involvement in the crime. The jury within this trial awarded the Goldman family compensatory and punitive damages totaling $33.5 million for wrongful death. So it is possible to win (not guilty) a murder criminal trial and lose (guilty) a civil trial. Simpson remains on parole following his release from prison in 2017 after serving nine years for armed robbery, kidnapping, and assault with a weapon.

Conclusions

The Burden of Proof is a party’s obligation to prove a charge, allegation, or defense. The Burden of Proof is the minimum level of proof needed to win a court case. It is the obligation to provide sufficient evidence for claims one makes in court. There are three primary standards of proof: (1) proof Beyond a Reasonable Doubt; (2) Preponderance of the Evidence, and (3) Clear and Convincing Evidence.

The civil Burden of Proof is Preponderance of Evidence for both the plaintiff and the defendant. The criminal Burden of Proof for the prosecution is beyond a Reasonable Doubt. The criminal Burden of Proof for the defense is generally Preponderance of Evidence. States vary, and different defenses also require different Burdens of Proof.

Circumstantial evidence indirectly proves a fact. For example, a fingerprint at the scene of the crime indirectly proves that because a defendant was present at the scene, he committed the crime. Direct evidence directly proves a fact. For example, if a defendant confesses to a crime, this is direct evidence that the defendant committed the crime.

Proof Beyond a Reasonable Doubt does NOT eliminate all doubt, just that the only reasonable answer is that the party with the burden proved their case and that something is true.

The O.J. Simpson case is a classic example of winning (not guilty of murder) in Criminal Court and losing (guilty) in Civil Court.

Continued success!

* This personal opinion article is meant for general information & educational purposes only. The author strongly recommends that you seek counsel from an attorney for legal advice and your own personal certified weapons trainer for proper guidance about shooting and using your firearms, self-defense, and concealed carry. It should not be relied upon as accurate for all shooters. The author assumes no responsibility for anyone’s use of the information and shall not be liable for any improper or incorrect use of the information or any damages or injuries incurred whatsoever. The author is not an attorney and does not offer legal advice or legal opinions.

© 2023 Col Benjamin Findley. All Rights Reserved. This article may not be reprinted or reproduced in whole or in part by mechanical means, photocopying, electronic reproduction, scanning, or any other means without prior written permission. For copyright information, contact Col. Ben Findley at [email protected].