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The answer is yes or no depending on who you talk to and is basically a matter of semantics or magic. The key is to avoid using the term "burden of proof", because the "burden of proof" consists of 2 components: the "burden of going forward with evidence" and "burden of persuasion". Both parties have a burden of going forward with evidence, but only the party making an affirmative claim like the plaintiff has a burden of persuasion. Initially, a plaintiff has the burden of going forward with evidence. This means that he loses if he doesn't offer evidence in support of his case. Once he has gone forward with evidence, if he has enough to make out a prima facie case for his claim, he has satisfied that burden. That being done, the defendant can, through crossexamination, try to scuttle the plaintiff's claim. At this point the defendant has no burdens at all. After crossexxaminations, if the court rules that plaintiff has still made out a prima facie case, then defendant's own burden of going forward with evidence arises. See the trick here? It didn't really shift. Once plaintiff satisfied his burden of going forward and making out a believable case, the defendant had to satify his own burden. Now, the defendant goes forward with his own evidence against the claim. When defendant is done and the case is over, the plaintiff now has the burden of pursuasion. In other words it is his obligation to peruade the jury or judge that he is correct. The jury looks at all the evidence and if it is persuaded that plaintiff is right, then plaintiff wins. If it is not persuaded, then plaintiff loses. So, the rule is that the burden of proof never really shifts. More like it just Saying that it shifts is a nice easy way to convey the idea that once one side proves his case the other must prove his. Both work.

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15y ago
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14y ago

(In the US) In criminal cases, the burden of proof NEVER shifts to the accused. The burden of proof is ALWAYS on the prosecution. The duty (or 'burden" if you choose to use that word) of the defense is to try to refute the evidence presented by the prosecution.

When a business is the prosecutor the burden of proof sometimes rests on the accused. This usually occurs when a customer enters into a contract with a business and then the business claims the customer has breached the contract, leaving the customer with early termination fees. This happens in a variety of different types of businesses and contracts, with the most public right now as far as I can see being internet service providers.

Added: The 2nd response is essentially correct when referring to CIVIL CASES. However, in civil court proceedings the terminology changes somewhat. There is no "prosecutor." The prosecutors place is taken by the party bringing the civil suit who is known as the Plaintiff and the individual against whom the suit is brought is not the 'accused,' they are the Defendant or Respondant.

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Q: When does the burden of proof shift in criminal cases?
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