Burden of Proof

The burden of proof is the legal standard that a party involved in a case must meet in order to legally establish a fact in their case. There are different burdens of proof in different situations. Who carries this burden can also vary, depending on the burden and the circumstances.

If you were hurt in a personal injury accident, such as a car or truck accident, you have the burden of proof in the case as the plaintiff. This usually means that you must show the various elements of negligence, which include:

• The defendant owed you a duty of care
• The defendant breached the duty of care
• The defendant’s breach of the duty of care caused the accident

As a result of the accident, you suffered damages for which the court can order compensation

You must supply evidence in favor of each of these elements to win your case.

Different burdens of proof may apply, depending on the case. Some are reserved only for criminal cases, while others may apply to both criminal and civil cases. Florida generally uses the following burdens of proof, in order of the strictest to the most relaxed standard:

Proof Beyond a Reasonable Doubt

Proof beyond a reasonable doubt is the burden of proof in criminal cases. The Florida Jury Instructions gives the following information to jurors before they deliberate on a defendant’s possible guilt:

• Reasonable doubt is not a possible doubt.
• Reasonable doubt is not a speculative, imaginary, or forced doubt.
• If there is not an “abiding conviction of guilt” after considering, comparing, and weighing all the evidence, the jury should return a “not guilty” verdict.
• The jurors should only consider the evidence introduced in the case to look for proof of guilt.
• A reasonable doubt of guilt can arise from the evidence, a lack of evidence, or a conflict in the evidence.

Because a person’s life and liberty are at stake in a criminal case, it makes sense that this would be the highest possible burden of proof. The prosecutor has the burden of proof in a criminal case.

Clear and Convincing Evidence

Clear and convincing evidence is the second highest burden of proof. This burden of proof is used in cases where a claimant is seeking an order of protection after alleging domestic violence, as well as in cases when the defendant is appealing a case based on mental health issues.

Clear and convincing evidence means that there is substantial evidence to support the argument so that the trier of fact has a firm belief that it is highly probable.



The clear and convincing burden of proof is used in personal injury cases in which the victim is seeking punitive damages. In these cases, the plaintiff has the burden of proof that the defendant acted with intentional misconduct or gross negligence before they can be awarded punitive damages.

Preponderance of the Evidence

Preponderance of the evidence means that it is more likely true than not that the party’s assertions are true. In other words, if the jury believes the plaintiff is at least 51% likely correct, the jury should rule in the plaintiff’s favor. This is the general burden of proof in personal injury cases.



The preponderance of evidence burden of proof can also arise in criminal cases, such as if the defendant wants to make an affirmative defense.

Probable Cause

Probable cause is the burden of proof necessary to obtain a warrant from the court. Generally, this burden of proof requires listing specific, articulable facts to convince the judge that a crime has been committed.

Reasonable Suspicion

Reasonable suspicion is the burden of proof for traffic stops and searches. This is one of the lowest burdens of proof and only requires that the officer has more than a hunch that a crime has been committed.