Due Process and the Burden of Proof        

By Dr. Peter A. Barone, Esq.                                      

In the United States legal system there are three burdens of proof. There is the preponderance of the evidence which is used in civil cases and in Violation of Probation cases where the prosecutor must prove their case with the preponderance of the evidence or 51%. There is clear and convincing evidence which is used in family law cases in the civil side and in appellate reviews in the criminal side. Lastly there is what is known as beyond and to the exclusion of a reasonable doubt which is the standard in the criminal cases. These are all part of the Due Process provided as protections in the United States criminal justice legal system.

In all of these standards and in accordance with the due process and standards of proof is what is known as the burden of proof. In all of the three standards it is the party, in the case of criminal cases it is the prosecutor on behalf of the state that has the burden of proving all the elements of each criminal act being charged against the defendant. When discussing the “burden of proof” it becomes obvious that it does not relate to the actual number of witnesses that are involved in or called in a case. It does however go to the merit and the weight of the evidence which is presented by the prosecutor via the testimonial evidence by the various witnesses. Notwithstanding the fact that the evidence presented is admissible and it is seen as being relevant, material, or competent that does not necessarily mean that the evidence will be given the weight it needs to raise to the level of the jury feeling that the evidence presented has them believing that the defendant committed the crime and is guilty of the crime(s) being charged. 

Throughout the entire trial the burden of proof is on the prosecution along with the burden and obligation of persuading and convincing the jury or the court of the guilt of the accused beyond and the exclusion of a reasonable doubt. This requirement on the prosecution comes directly from the “Due Process Clause of the United States Constitution.”  Both the Fifth Amendment and the Fourteenth Amendment to the United States Constitution prohibit governmental deprivations of life, liberty, or property, without due process of law. 

The Due Process Clause of the Fourteenth Amendment serves three distinct functions in modern constitutional doctrine: The first function it serves is it incorporates against the States specific protections defined in the Bill of Rights; the second function it serves is that it contains a substantive component, sometimes referred to as ‘substantive due process, and the third function it serves is a guarantee of fair procedure, sometimes referred to as procedural due process.