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Focus Column
Criminal Law
By Daniel Lee Jacobson
"For
many years the term 'burden of proof' was ambiguous because the term was
used to describe two distinct concepts." Director, Office of Workers'
Compensation Programs v. Greenwich Collieries, 512 U.S. 267,
272 (1994). Those two distinct concepts are "the burden of proof" and
the "burden of producing evidence." Recognizing that these concepts are
distinct is fundamental to understanding their different and vital roles
in litigation.
In the terminology of the law of evidence in California, the
"burden of proof" is synonymous with the "burden of persuasion," and the
"burden of producing evidence" is synonymous with the "burden of going
forward." People v. Valverde, 246 Cal.App. 318 (1966).
"Except as otherwise provided by law, a party has the burden of
proof as to each fact the existence or nonexistence of which is
essential to the claim for relief or defense that he is asserting."
Evidence Code, Section 500. So, for instance, a plaintiff generally has
the burden of proving all of the facts necessary to support each element
of each cause of action, and a defendant generally has the burden of
proving all of the facts necessary to support each element of each
affirmative defense. Morris v. Williams, 67 Cal.2d 733
(1967).
"Except as otherwise provided by law, the burden of proof
requires proof by a preponderance of the evidence." Evidence Code,
Section 115. Other degrees of proof that are commonly "otherwise
provided by law" are mentioned in Section 115. Those degrees are "raise
a reasonable doubt," "clear and convincing proof" and "beyond a
reasonable doubt."
But, this list is nonexhaustive. For instance, the degree of
proof required at a preliminary hearing is "strong suspicion,"
Garabedian v. Superior Court, 59 Cal.2d 124, 127 (1963); in
other words, "sufficient cause," Rogers v. Superior Court,
46 Cal.2d 3 (1955).
The general rule is, "The burden of proof does not shift
during trial - it remains with the party who originally bears
it." (Emphasis in original.) Sargent Fletcher Inc. v. Able Corp.,
110 Cal.App.4th 1658, 1666 (2003). (Citing Mathis v. Morrissey,
11 Cal.App.4th 332, 346 (1992); and Smith v. Santa Rosa Police
Dept., 97 Cal.App.4th 546, 569 (2002).)
However, the state Supreme Court has said that courts are
allowed to shift the normal allocation of the burden of proof upon
consideration of "a number of factors: the knowledge of the parties
concerning the particular fact, the availability of the evidence to the
parties, the most desirable result in terms of public policy in the
absence of proof of the particular fact, and the probability of the
existence or nonexistence of the fact." Aydin Corp. v. First State
Ins. Co., 18 Cal.4th 1183 (1998). And, as discussed later in
this article, certain presumptions shift the burden of proof.
"Unlike the burden of proof, the burden of producing evidence
may shift between plaintiff and defendant throughout the trial."
(Emphasis in original.) Sargent Fletcher Inc. v. Able Corp.,
110 Cal.App.4th 1658 (2003). The burden of producing evidence is
codified at Evidence Code, Section 550: "(a) The burden of producing
evidence as to a particular fact is on the party against whom a finding
on that fact would be required in the absence of further evidence; (b)
The burden of producing evidence as to a particular fact is initially on
the party with the burden of proof as to that fact."
Once the party with the burden of producing evidence, "produces
evidence sufficient to make its prima facie case, the burden of
producing evidence shifts to the other party to refute the prima
facie case. (Citations). Even though the burden of producing evidence
shifts to the other party, that party need not offer evidence in reply,
but failure to do so risks an adverse verdict. (Citations.) Once a prima
facie showing is made, it is for the trier of fact to say whether or not
the crucial and necessary facts have been established. (Citations.)"
(Emphasis in original.) Sargent Fletcher Inc. v. Able Corp.,
110 Cal.App.4th 1658 (2003). Witkin explains, "The burden of
producing evidence will shift to the other party if the party
with that initial burden (a) proves a fact giving rise to a
presumption, [internal citation omitted] or (b) produces evidence
of such weight that a determination in that party's favor would
necessarily be required in the absence of contradictory evidence."
(Emphasis in original.) 1 Witkin California Evidence, 4th Edition,
Burden Section 4(2).
"A presumption is an assumption of fact that the law requires to
be made from another fact or group of facts found or otherwise
established in the action." Evidence Code, Section 600(a). "A
presumption is either conclusive or rebuttable." Evidence Code, Section
601. "A statute providing that a fact or group of facts is prima facie
evidence of another fact establishes a rebuttable presumption."
The Evidence Code contains a small nonexhaustive catalog of
conclusive presumptions at Evidence Code Sections 622-624. (Facts
recited in written instrument, Section 622; Estoppel by own statement or
conduct, Section 623; and Estoppel of tenant to deny title of landlord,
Section 624.) But, "all other presumptions declared by law to be
conclusive, are conclusive presumptions." Evidence Code Section 620.
(See, for instance, Civil Code Section 3440.) "Conclusive
presumptions are not evidentiary rules so much as they are rules of
substantive law." 7 Cal.L.Rev. Comm. Reports 1 (1965).
Over the years there has been a great deal of scholarly debate
about the nature and function of rebuttable presumptions. Two schools of
thought formed. One school claimed that a presumption is a preliminary
assumption of fact that vanishes upon the introduction of evidence that
is sufficient to overcome the assumed fact.
Under this view, it was thought that because certain
conclusionary facts so often follow certain preliminary facts that proof
of the preliminary fact should suffice for establishment of the
conclusionary fact, absent contrary evidence. See Thayer, "Preliminary
Treatise on Evidence," 313-352 (1898); 9 Wigmore, Evidence Sections
2485-2491 (3d ed. 1940); and Morgan, "Presumptions, 10," Rutgers Law
Review 512, 516 (1956).
The other school of thought said that the creation of a
presumption rests on policy considerations. If the underlying policy is
deserving of a finding of the presumed fact in light of no contrary
evidence, then it should be of sufficient import to require such a
finding in light of evidence that is either of insufficient weight or is
simply not believed. These underlying beliefs led to the conclusion that
presumptions should shift the burden of proof. See McCormick, Evidence
Section 317 at 671-672 (1954); and Morgan, "Some Problems of Proof 81"
(1956).
California's view is that both schools of thought are correct,
depending on the type of presumption. "A presumption affecting the
burden of producing evidence is a presumption established
to implement no public policy other than to facilitate the
determination of the particular action in which the presumption is
applied." Evidence Code, Section 603. (Emphasis added.) "A presumption
affecting the burden of proof is a presumption established to
implement some public policy other than to facilitate the
determination of the particular action in which the presumption is
applied ... " Evidence Code, Section 605. (Emphasis added.)
"The effect of a presumption affecting the burden of producing
evidence is to require the trier of fact to assume the existence of the
presumed fact unless and until evidence is introduced which would
support a finding of its nonexistence ... " Evidence Code, Section 604.
"The effect of a presumption affecting the burden of proof is to impose
upon the party against whom it operates the burden of proof as to the
nonexistence of the presumed fact." Evidence Code, Section 606.
A long list of presumptions affecting the burden of producing
evidence is at Evidence Code, Sections 631-647. (For example, Ownership
of things possessed, Section 637; Letter received in ordinary course of
mail, Section 641; and Res ipsa loquitur, Section 646.) Evidence Code,
Sections 662-670 contain a list of presumptions affecting the burden of
proof. (For example, Owner of legal title to property is owner of
beneficial title, Section 662; Ceremonial marriage, Section 663; and
Death of person not heard from in five years; Section 667.) But, both
lists are nonexhaustive. Evidence Code, Sections 630 and 660.
Some older cases identify presumptions as evidence. See,
for example Smellie v. Southern Pacific Co., 212 Cal. 540 (1931).
However, Evidence Code, Section 600, specifically overrules those case
with the sentence, "A presumption is not evidence."
Daniel Lee Jacobson is an attorney at Veatch, Carlson,
Grogan & Nelson and an adjunct professor at Pacific West College of Law. |