Burden Of Proof

Chicago Legal Help Regarding Burden of Proof

What Does the Burden of Proof Mean?

In Illinois, there are a number of ways that one can become involved in the Criminal Justice System, from major felony charges such as murder, armed robbery, delivery of controlled substances, to misdemeanors like DUI, assault, or retail theft, to petty offense traffic and ordinance violations, such as speeding no more than 25 miles over the posted limit, etc. Depending on the nature of the charge, and the prosecuting authority bringing the charge, there are different rules that apply as to the "Burden of Proof", meaning how much evidence the prosecution needs to obtain a guilty verdict.

Proof Beyond a Reasonable Doubt Standard

Most of us are familiar with the concept of "Proof Beyond a Reasonable Doubt" from what we have seen on television, or in movies and books. Most of us also have no real idea as to what that actually means in any given situation though. In fact, there is no exact definition for the term contained in any statute or case precedent, despite the fact the burden of proof is especially important in every criminal case. The Pattern Jury Instructions that we give to jurors when they are sent to deliberate a given case not only fail to give any definition of the term, the cases on this issue basically prohibit lawyers or the judge from offering up any definition. Instead, the jurors are presumed to understand the plain meaning of the words, and to consider the evidence against that standard.

In Illinois, the Proof Beyond a Reasonable Doubt standard has been embodied in our Criminal Code, under Chapter 720, ILCS, Section 5/3-1, which provides that in all cases, a defendant is presumed innocent until proven guilty by proof beyond a reasonable doubt. "In all cases" means all cases involving criminal or quasi-criminal charges brought under the Illinois Criminal Code and State violations under the Vehicle Code, meaning all felonies, misdemeanors, and State traffic violations. So what constitutes "reasonable doubt?" How do we know it when we see it? How do you establish reasonable doubt when no one tells you what it is in the first place? When arguing a case before a Judge or Jury, it is OK to point out the facts and circumstances within the evidence heard at trial that you believe amount to reasonable doubt. For example, inconsistent testimony, contradictory facts, a witness’s bias, motive to fabricate, etc. can all be the basis of reasonable doubt.

Preponderance of the Evidence Standard

The other standard of proof that may apply in certain prosecutions is the "preponderance of the evidence" standard. This is a much lower standard of proof than that required in the ordinary criminal case. It is applied by Supreme Court rule to any and all non-traffic/non-conservation ordinance violations, punishable by fine only, not by jail time, and by statute to proceedings involving alleged violations of a sentence of probation, conditional discharge, or court supervision. There is a definition for this standard of evidence, and it is that the charges brought are more likely true than not (see Supreme Court Rule 578). Imagine a scale: a slight tipping of that scale in favor of "guilty" is all that is required, the proverbial 50.1 percent vs. 49.9 percent. Due to "home rule" laws, many counties and municipalities have the power to pass local ordinances that parallel the criminal code, but instead of having jailable offenses that would require the State to prove their prosecution beyond a reasonable doubt, the ordinance is easier to prove and brings in more money for the local jurisdiction’s coffers. For example, disorderly conduct under State law is a Class C misdemeanor which can be punished by up to 30 days in jail, and must be proven beyond a reasonable doubt, but under a local ordinance, such as the Chicago Municipal Code, it is a mere petty offense that need only be proven by the slight tip of the scales.

Local Ordinances

There are municipalities that, rather than write their own ordinances and codify them in their own numerology, simply choose to adopt the Illinois Traffic Code provisions as they are written, and slap their local government brand on them. This can create some confusion, because the uniform citation reads on the offense line: 625-5/11-601(a)(5), which looks very much like the State Law violation, only without the "ILCS" between the number 625 and the 5/11-601(a)(5). This would lead one to believe that the standard of proof is beyond a reasonable doubt, but the local municipal prosecutor and the Judge are telling you that the burden is a much lower standard and much easier to prove, known as the preponderance standard.

The practical difference between the two standards of proof is plainly evident: the State bears the burden of proving guilt beyond any reasonable doubt, which means that the accused needs to prove nothing, there just needs to be some kernel of doubt that makes it possible that the accused is not guilty - enough to satisfy the Judge or Jury that the burden was not met. With the preponderance standard, there is a burden of production on the accused to show that the charges are more likely untrue than true, or at best, that the issue is a 50/50, with an equal balance of the evidence for both sides (in Baseball, the tie goes to the runner, but in "Ordinanceball", the tie goes to the accused).

Clear and Convincing Standard

There is another burden of proof standard out there that relates to the issue of Driver’s License Reinstatement Hearings, but this burden is not on the State, it is on the motorist petitioning for reinstatement of privileges after they were revoked for a DUI conviction, or the like. This standard is referred to as the "Clear and Convincing" standard, and it falls somewhere between preponderance and beyond a reasonable doubt. It is basically strong evidence that persuades the trier of fact to a degree of reasonable certainty that it is truth. In the context of a hearing before a Secretary of State officer, whether at a formal or informal hearing, a motorist, in order to succeed, must present clear and convincing evidence that he has fully met and addressed his alcohol abuse/dependency issue(s), obtained all appropriate counseling as mandated pursuant to an Uniform Alcohol and Drug Assessment (evaluation), and has made significant lifestyle changes that show that the motorist now presents a minimal risk to repeat the offense of DUI, etc. While one does not have an absolute right to be represented by counsel at those hearings, in that they will not appoint a public defender, one should retain counsel knowledgeable of the administrative rules and procedures involved in those hearings, especially as to the burden of proof, and how to satisfy it at a hearing.

What does accountability mean?

You've probably heard the phrase, “don’t do the crime if you can’t do the time.” But under Illinois law, you don’t technically have to physically take part in any crime at all in order to be found guilty of one. That is because of the state’s criminal accountability laws. Accountability relates to the circumstances under which a person may be held responsible for the actions of others, and it could have long-lasting effects on your life if you’re found guilty under this concept of criminal accountability.


You can be charged with a crime that you did not physically commit if you aid, abet, solicit, or agree to help another person with criminal activity either before or during the offense. Our Illinois laws state that you are legally accountable for another’s conduct when:

  1. In regards to the particular crime in question, you have the mental state set forth in the statute for that crime and you cause another person to commit the crime when that person either doesn’t have the required mental state set out in the statute or is legally incapable of having the required mental state (such as a person who is mental handicapped or a child)
  2. The statute defining the offense makes you accountable.
  3. You agree to solicit, aid, abet or try to help another person in planning or committing a crime, whether it happens either before or during commission of that offense.

Generally, in order to show that you were accountable, the state must prove that you shared the same criminal intent as the person charged with committing the crime and there was a common criminal design. This means that even if you were nowhere in sight when the offense was committed, you might still be charged with a crime because you acted to further the offense.

However, state law says a person is not accountable when:

  1. You are the victim of the crime that was committed.
  2. The offense is so defined such that your behavior was inevitable.
  3. Before the crime is committed, you stopped trying to facilitate the crime and either
    1. Stopped the effectiveness of your prior efforts to promote the crime
    2. Gave timely warning to law enforcement
    3. Made an actual effort to stop the crime before it happened

Talk to a Knowledgeable Chicago Criminal Attorney

Whether you are charged with a criminal felony, misdemeanor, DUI, traffic offense, municipal ordinance violation, or whether you wish to obtain reinstatement of driving privileges, the burden of proof is a key issue that must always be addressed. If you are in any of these situations, you need an aggressive Chicago criminal defense attorney that is ready to fight for you! Call us at Mitchell S. Sexner & Associates LLC, at (800) 996-4824 today to set up an in-person, no cost, confidential, consultation.

Click here for more information about your rights after an arrest.

Written by Mitchell S. Sexner Last Updated : July 14, 2021