BURDEN OF GOING FORWARD

The onus on a party to refute or to explain evidence presented in a case.

The burden of going forward, also called the burden of producing evidence, burden of production, or the burden of proceeding, requires a party in a lawsuit to refute or explain each item of evidence introduced that damages or discredits his or her position in the action, as a trial progresses. Suppose a person is charged with the possession of stolen goods. After the prosecution has introduced evidence of the defendant's possession of such goods, the defense bears the burden of refuting or explaining the evidence. If the evidence appears unfavorable for the prosecution, it has the burden of going forward to produce more evidence to bolster its claim that the defendant committed the crime. The failure to produce more evidence may result in the judge's dismissing the charges against the defendant. If the prosecution produces such evidence, it shifts the burden of production back to the defendant, who then must refute the additional evidence.

The burden of going forward also shifts during a civil proceeding. It shifts to the defendant after the plaintiff rests its case, but it may shift even before that time. In a wrongful death case, for example, the plaintiff may, at a certain point in the trial, file a motion asking for a ruling (sometimes a motion for summary judgment or a motion for a directed verdict) in his or her favor by maintaining that he or she has presented sufficient evidence to show that the defendant's actions resulted in the victim's death. The burden then shifts to the defendant to produce additional evidence to refute the plaintiff's claim; otherwise, the judge may grant the plaintiff's motion, thus concluding the case in the plaintiff's favor.