Burden of Proof in the Criminal Justice System

by Kelly Glenn

Burden of proof, also known as standard of proof, is used in both the criminal and civil justice systems to set levels of obligations that must be met by the government and its representatives before someone’s freedoms are restricted. In the criminal justice system, there are three levels of burden of proof: reasonable suspicion, probable cause, and beyond a reasonable doubt. Examples of restricting the freedoms of citizens in (or by) the criminal justice system can include:

• a law enforcement officer stopping a citizen;
• a law enforcement officer detaining a citizen;
• a law enforcement officer questioning a citizen;
• a law enforcement officer frisking/patting down a citizen;
• a law enforcement officer searching a citizen, whether or not that search is based on a search warrant issued by a magistrate/justice of the peace/judge or not;
• a law enforcement officer searching a citizen’s property, whether or not that search is based on a search warrant issued by a magistrate/justice of the peace/judge or not;
• a law enforcement officer seizing a citizen (arrest), whether or not that seizure is based on an arrest warrant issued by a magistrate/justice of the peace/judge or not;
• a law enforcement officer seizing a citizen’s property (as evidence of a crime), whether or not that seizure is based on a search warrant issued by a magistrate/justice of the peace/judge or not;
• a prosecutor bringing a case against a citizen before a judge in a preliminary hearing, before a grand jury during an indictment hearing, or before a judge and/or jury during a trial;
• a judge certifying a felony case from a lower court to a grand jury;
• an indictment issued by a grand jury; and
• a conviction by a judge or jury.

In the examples listed above, a representative of the government is involved: law enforcement officer, magistrate, justice of the peace, prosecutor, and/or judge. When trial juries and grand juries are involved, a representative of the government – the judge, instructs them.

To ensure that the government and its representatives are justified in limiting or restricting someone’s freedoms, the three levels of burden of proof were created, and the more restrictive an action by the government and its representatives is on someone’s freedoms, the greater the burden of proof. In other words, it takes more proof that a crime was committed to convict someone and possibly imprison them than it does to merely stop and detain a citizen when a criminal activity is suspected.

Let’s take a look at each level using a scenario:

In the scenario above, it is reasonable to suspect that the person could have just committed a crime or is about to. The businesses have been closed for hours, the subject is dressed in clothing that conceals him in the nighttime, and he is carrying something that could be a tool to gain access to a building or merchandise stolen from a building. Solid, proactive investigative work means this officer will stop, detain, and question the subject. If the officer fears for his/her safety or the safety of others, it is reasonable to pat down (or frisk) the subject for weapons.

NOTE: The key to reasonable suspicion is the word “reasonable.” The officer must ask him/herself: “Would a reasonable person draw the same conclusion or act in the same way to restrict this person’s freedoms?” If the answer is yes, the officer’s actions are allowable.

In the continued scenario above, it is probable, or more likely than not, that this subject just committed or attempted to commit a breaking and entering into the business. To support probable cause to arrest and search the subject, there is an alarm, a window that was probably broken by the crowbar, and it is probable that the blood on the broken window belongs to the subject who is bleeding from his hand.

This subject’s right to be free from unreasonable searches and seizures, which is guaranteed by the 4th Amendment of the United States Constitution’s Bill of Rights, is not applicable because probable cause exists to believe the subject committed a crime. The subject will be arrested and searched. Any evidence of the crime, including photographs of his injury, swabs of his blood, and clothing that could have traces of glass from the window embedded in it, can be seized.

The officer must take the subject (now suspect) in front of a magistrate, justice of the peace, or judge and swear under oath to the circumstances that meet the burden of proof, probable cause. If probable cause is met, an arrest warrant will be issued and served on the suspect, and a bond hearing will determine if the suspect will remain in jail or be released until future court hearings.

If the crime is a felony, the suspect, now called the defendant (or person accused of a crime), will attend a preliminary hearing in a lower court. The prosecuting attorney calls witnesses to establish two criteria in front of the judge:

• Was a crime committed?
• Is it probable, or more likely than not, that the defendant is the person responsible for committing that crime?

If the judge confirms there is probable cause to believe that those two criteria have been met, the case will then go before a grand jury. If the grand jury believes that there is probable cause to indict the defendant, they return what is called a true bill, and the case will be tried in a higher court by a judge or jury.

Any evidence collected from the scene of the crime, such as photographs of the broken window, swabs of blood from the shards of glass, and the actual shards of glass, can be submitted to the crime lab while the preliminary hearing and grand jury hearing take place. If/when the blood samples and/or glass samples match, the lab report will add to the probable cause for any court hearings and can be used, along with other types of evidence (eye witness statements, video surveillance, etc.) to meet the final burden of proof at trial: Beyond a Reasonable Doubt.

Because any defendant’s freedom will be significantly impacted by a conviction, the government is required to meet the highest burden of proof: beyond a reasonable doubt. In the scenario, the prosecutor met that burden of proof by convincing the jury through the presentation of evidence that there is no other reasonable conclusion to draw other than the defendant committed the crime.

NOTE: Again, the word “reasonable” is significant. A conviction does not require that there be no other conclusion. It requires that there be no other reasonable conclusion. In other words, the defense could claim that aliens framed the defendant for this crime. Because that would be an unreasonable doubt, a judge or jury would still find the defendant guilty beyond a reasonable doubt.

Burden of proof is used in EVERY case where a crime is suspected to have occurred. How far that case goes depends upon if the next level can be met. Some cases stop at reasonable suspicion if a law enforcement officer does not feel they can meet the probable cause standard to seize or arrest someone or someone’s property. A suspect might be arrested or even go to trial as a defendant, but if the judge or jury is not convinced beyond a reasonable doubt, the defendant might never be convicted.

When evaluating burden or standard of proof, it is important to remember that the three levels increase as a person’s freedoms have the potential to be restricted and that a case will not move completely through the criminal justice system unless all three are met.

Suggested Citation for this Article

Glenn, K.M., Criminal Justice Know How, LLC, November 08 2020, Burden of Proof in the Criminal Justice System, https://criminaljusticeknowhow.com/burden-of-proof-in-the-criminal-justice-system/.