Proving The Case: Burdens Of Proof

As a trial attorney who has tried both civil and criminal cases in my nearly 15 years of practice, I can confidently say that the key to properly evaluating a case and maximizing the possibility of trial success is fully understanding the burden of proof involved.

Unfortunately, this can be confusing to clients. I have often had potential clients at an initial criminal consultation say, “I can’t go to trial because I can’t prove I am not guilty.” Similarly, I have had clients with a potential civil matter tell me, “I am not sure I should do anything because I can’t prove what happened.” The key thing to consider for both of these prospective clients: What does “prove” mean?

State’s Burden in Criminal Cases

In criminal cases, be it a felony assault charge, misdemeanor DWI, or a traffic ticket, the burden of proof is always on the State of Texas. What does this mean? It means that the State of Texas, and not the defendant, must prove every element of the charge against the accused. If the State fails to do so, then the judge or jury must return a verdict of Not Guilty.

So what does it mean for the State to “prove” the case against a defendant? This is where the burden of proof comes into play. The burden of proof is always on the State and it is always the same: Beyond a Reasonable Doubt. It is the highest standard under the law. If after hearing all of the evidence against a person the jury is left with any doubt at all based on reason and common sense, then it is required to acquit the defendant and find them Not Guilty.

Jurors typically do not initially understand the reality of just how high this burden is on the State. An experienced defense attorney can convey the magnitude of the prosecutor’s burden to the jury. For instance, most jurors do not realize that it is very possible for a police officer to be “correct” in stopping and arresting a person and a jury also be “correct” in finding that same person Not Guilty of the crime. Why? Because the officer only needs only reasonable suspicion to stop a person and just probable cause to make the arrest – two burden of proof levels that are significantly below the level of Beyond a Reasonable Doubt. In fact, these two burdens are even lower than the standard of proof in a civil case.

Plaintiff’s Burden in Civil Cases

A civil case typically involves two private parties fighting over monetary damages, such as in a personal injury matter. The plaintiff in a personal injury case is alleging that he or she has suffered damages due to a physical injury caused by the defendant. Such damages can consist of things like loss wages, bill for past medical treatment, the need for future care and general pain and suffering. Of course, before a Plaintiff can recover for any damages he or she must first “prove” that the Defendant is in fact responsible for those injuries.

Like the State in a criminal case, the Plaintiff carries the burden of proof in a personal injury case. However, unlike the State in a criminal case, the Plaintiff’s burden is not Beyond a Reasonable Doubt. Rather, the burden on the plaintiff is to prove their case by a preponderance of the evidence. So what does this mean?

Essentially, to prove a case by a preponderance of the evidence a Plaintiff must present evidence showing it is more likely than not that what the Plaintiff is claiming is true. The jury doesn’t have to be convinced beyond all reasonable doubt; rather, if the jurors feel the evidence points every so slightly in favor of the plaintiff then the plaintiff prevails.

Simply put, it is much easier task for a plaintiff in a civil case to “prove” its case than it is for the State to “prove” its case in a criminal case.


Preponderance of the evidence is a higher standard than reasonable suspicion or probable cause, but significantly less than beyond a reasonable doubt. In order to accurately assess the strength of your case, or the case against you, it is essential that it be viewed in context of the required burden of proof. Before you reach any conclusions about your particular situation, it is recommended that speak with an experienced attorney who can properly assess your case.