1.5Burdens of Proof/Persuasion and Production

A.Generally

“The term ‘burden of proof’ is one of the ‘slipperiest member[s] of the family of legal terms.’ Part of the confusion surrounding the term arises from the fact that historically, the concept encompassed two distinct burdens: the ‘burden of persuasion,’ i.e., which party loses if the evidence is closely balanced, and the ‘burden of production,’ i.e., which party bears the obligation to come forward with the evidence at different points in the proceeding.” Schaffer v Weast, 546 US 49, 56 (2005) (internal citations omitted; alteration in original).

The burden of production may shift several times during a trial, but the burden of persuasion generally remains with the plaintiff. Widmayer v Leonard, 422 Mich 280, 290 (1985). However, the burden of persuasion may rest with the defendant as to particular defenses. For example, a defendant claiming insanity bears the burden of proving it by a preponderance of the evidence. MCL 768.21a.

B.Burden of Proof/Persuasion

The party with the burden of persuasion has the duty of establishing the truth of the case according to the weight of evidence required. McKinstry v Valley OB-GYN Clinic, PC, 428 Mich 167, 178-179 (1987).

1.Preponderance of the Evidence

“Proof by a preponderance of the evidence requires that the factfinder believe that the evidence supporting the existence of the contested fact outweighs the evidence supporting its nonexistence.” Blue Cross and Blue Shield of Mich v Milliken, 422 Mich 1, 89 (1985).

2.Clear and Convincing Evidence

The intermediate burden of proof, clear and convincing evidence, has been defined as “evidence that ‘produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct, and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.’” In re Chmura (After Remand), 464 Mich 58, 72 (2001), quoting In re Martin, 450 Mich 204, 227 (1995) (alterations in original).

3.Beyond a Reasonable Doubt

The highest burden of proof is beyond a reasonable doubt. “It is a fundamental principle of our system of justice that an accused’s guilt must be proved beyond a reasonable doubt to sustain a conviction.” People v Hubbard, 387 Mich 294, 299 (1972). “A reasonable doubt is a fair, honest doubt growing out of the evidence or lack of evidence. It is not merely an imaginary or possible doubt, but a doubt based on reason and common sense. A reasonable doubt is just that: a doubt that is reasonable, after a careful and considered examination of the facts and circumstances of [the] case.” M Crim JI 3.2(3).¹

4.Other Burdens of Proof

There are other burdens of proof created by caselaw, court rules, and rules of evidence. These typically relate to motions and evidentiary rulings.

Some motions require a showing of good cause. Examples include:

•Adjournments. MCR 2.503(B)(1).

•Unendorsed witnesses. MCR 2.401(I)(2).

•Substitution of counsel. People v Ginther, 390 Mich 436, 441 (1973).

Another burden of proof is due diligence. Examples include:

•Requests for second summons. MCR 2.102(D).

•Failure to produce an endorsed witness. See People v Eccles, 260 Mich App 379, 388 (2004).

C.Burden of Production (Burden of Going Forward)

“’The burden of producing evidence on an issue means the liability to an adverse ruling (generally a finding or directed verdict) if evidence on the issue has not been produced. It is usually cast first upon the party who has pleaded the existence of the fact, but . . . the burden may shift to the adversary when the pleader has discharged his initial duty. The burden of producing evidence is a critical mechanism in a jury trial, as it empowers the judge to decide the case without jury consideration when a party fails to sustain the burden.’” McKinstry v Valley OB-GYN Clinic, PC, 428 Mich 167, 179 (1987), quoting McCormick, Evidence (3d ed), §336, p 947. The party with the burden of production has the duty of introducing sufficient evidence to have the relevant issue considered by the court. McKinstry, 428 Mich at 179. Presumptions may affect the burden of production.² “The immediate effect of a presumption is to shift the burden of going forward with the evidence related to the presumed fact.” Id. “[A] plaintiff carries the ultimate burden of persuasion and must prove the elements of his or her claim, but a defendant carries the burden of production on an affirmative defense. Once the defendant comes forward with evidence for such a defense, then the plaintiff must produce evidence in response.” Law Offices of Jeffrey Sherbow, PC v Fieger & Fieger, PC, 507 Mich 272, 305 (2021).

D.Standard of Review

A trial court’s instruction on the applicable burden of proof is a question of law that is reviewed de novo. Stein v Home-Owners Ins Co, 303 Mich App 382, 386-387 (2013).