Burden of Proof or Risk of Non-Persuasion
the duty of a party to present evidence on the facts in issue
necessary to establish his claim or defense by the amount of
evidence required by law.
the establishment of a requisite degree of belief in the mind of
the trier of fact as to the fact in issue.
Two separate burdens in burden of proof:
1. Burden of going forward – that of producing evidence
2. Burden of persuasion – the burden of persuading the trier of
fact that the burdened party is entitled to prevail.
Upon Whom Burden Of Proof Rests
A. Civil Cases
1. the plaintiff has the burden of proof to show the truth of his
allegations if the defendant raises a negative defense.
2. The defendant has the burden of proof if he raises an affirmative
defense on the complaint of the plaintiff.
Note: In a civil case, the plaintiff is always compelled to allege
affirmative assertions in his complaint. When he alleges a cause
of action, he will be forced to allege that he has a right and
that such right was violated by the other party. Thus he has the duty
to prove the existence of this affirmative allegation.
When the defendant files his answer and sets up purely a negative
defense and no evidence is presented by both sides, it is the
defendant who would win the case since the plaintiff has not
presented the quantum evidence required by law. On the other hand,
when the defendant in his answer sets up an affirmative defense, if
there is no evidence presented by both sides, it is the defendant who
will lose the case.
B. Criminal Cases
The burden of proof is on the prosecution by reason of presumption of
The burden of proof as to the guilt of the accused must be borne by
the prosecution. It is required that courts determine first if the
evidence of the prosecution has at least shown a prima facie case
before considering the evidence of the defense. If the prosecution
does not have a prima facie case, it is futile to waste time in
considering the evidence presented by the defense. Should the
prosecution succeed in establishing a prima facie case against the
accused, the burden is shifted upon the accused to prove otherwise.
Under the Speedy Trial Act, if the accused was not brought to trial
within the time required, the information shall be dismissed on the
motion of the accused. In this case, THE BURDEN OF PROOF of supporting
such motion is with the accused (Section 13, Republic Act 8493).
Degree Of Proof That Satisfies The Burden Of Proof
A. Civil Cases
Preponderance of evidence
B. Criminal Cases
To sustain conviction – Evidence of guilt beyond reasonable doubt.
Engenders a well founded belief of the fact of the commission of a
Issuance of warrant of arrest
Probable cause, i.e. that there is reasonable ground to believe that
the accused that committed an offense.
C. Administrative Cases
Hierarchy Of Evidence
1. proof beyond reasonable doubt
2. clear and convincing evidence
3. preponderance of evidence
4. substantial evidence
Burden Of Evidence
logical necessity on a party during a particular time of the trail to
create a prima facie case in his favor or to destroy that created
against him by presenting evidence.
In both civil and criminal cases, the burden of evidence lies on the
party who asserts an affirmative allegation.
Distinctions Between Burden Of Proof and Burden Of Evidence
1. Burden of Proof
Does not shift and remains throughout the entire case exactly where
the original pleadings placed it.
Burden of Evidence
Shifts from party to party depending upon the exigencies of the case
in the course of the trial.
2, Burden of Proof
Generally determined by the pleadings filed by the party.
Burden of Evidence
Generally determined by the developments of the trial, or by the
provisions of substantive law or procedural rules which may relieve
the party from presenting evidence on the facts alleged.
Upon Whom Burden Of Evidence Rests
A. Civil Cases:
The plaintiff is to prove his affirmative allegations in his counter
claim and his affirmative defenses.
B. Criminal Cases:
The PROSECUTION has to prove its affirmative allegations in the
information regarding the elements of the crime as well as the
attendant circumstances while the defense has to prove its
affirmative allegations regarding the existence of justifying or
exempting circumstances, absolutory causes or mitigating
Principle Of Negative Averments
Negative allegations need not be proved, whether in a civil or
When such negative allegations are essential parts of the cause of
action or defense in a civil case, or are essential ingredients of
the offense in a criminal case or defenses thereto.
However, in Civil Cases, even if the negative allegation is an
essential part of the cause of action or defense, such negative
allegation does not have to be proved if it is only for the purpose of
denying the existence of a document which should properly be in the
custody of the adverse party.
In a Criminal Case, the rule if the subject of a negative averment
inheres in the offense as an essential ingredient thereof, the
prosecution has the burden of proving the same. In view however, of
the difficult office of proving a negative allegation, the prosecution,
under such circumstance, need to do no more than make a prima facie
case from the best evidence obtainable.(People v. Cabral,68 Phil.564)
An inference as to the existence or non-existence of a fact which courts
are permitted to draw from the proof of other facts.
A presumption shifts the burden of going forward with the evidence. It
imposes on the party against whom it is directed the burden of going
forward with evidence to meet or rebut the presumption.
Classification of Presumptions
1. Presumption Juris or of Law
is a deduction which the law expressly directs to be made from
2. Presumtion Hominis or of Fact
is a deduction which reason draws from facts proved without an
express direction from the law to that effect.
Presumtptions of Law Distinguished From Presumptions of Fact
1. Presumptions of Law
Certain inference must be made whenever the facts appear which
furnish the basis of the inference.
Presumptions of Fact
Discretion is vested in the tribunal as to drawing the inference.
2. Presumptions of Law
Reduced to fixed rules and form a part of the system of
Presumptions of Fact
Derived wholly and directly from the circumstances of the
particular case by means of the common experience of mankind.
Presumption Juris Maybe Divided Into
1. Conclusive Presumption
(juris et de jure) – which is a presumption of law that is not
permitted to be overcome by any proof to the contrary
2. Disputable Presumption
(juris tantum) - is that which the law permits to be overcome or
contradicted by proofs to the contrary; otherwise the same remains
Bar Exam 2004
Distinguish Burden of proof and burden of evidence.
Burden of proof is the duty of a party to present evidence on the
facts in issue necessary to establish his claim or defense by the
amount of evidence required by law.(Sec.1 of Rule 131), while burden
of evidence is the duty of a party to go forward with the evidence
to overthrow prima facie evidence established against him.
(Bautista v. Sarmiento, 138 SCRA 587 1985).