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Who bears the burden of proof the Plaintiff or the Defendant in a civil suit?

New York, NY |

The individuals involved are in the midst of a divorce/ custody action. An arrest was made for aggravated harassment- a misdemeanor (verbal threats made over a course of time) the victim was aware that arrestee had the wherewithal to act on the threats, feared for their safety, expressed that to the arrestee and reported the series of incidents to the police. Arrestee admits making some of the statements claiming they were taken out of context. The DA declined to prosecute citing insufficient evidence (because the threats were made verbally) to successfully prosecute. A suit was then filed against the victim saying there was no probable cause for their arrest and alleging abuse of process, malicious prosecution, false imprisonment and abuse of process claiming seeking punitive damages.

Attorney Answers 5


  1. The plaintiff bears the burden of proving the allegations made against the defendant.


  2. In a false arrest case the plaintiff has the burden of proof but if the arrest was without a warrant then lack of probable cause is assumed and the defendant has the burden of proving justification as an affirmative defense. The plaintiff has the burden of proof in a malicious prosecution case.

    I am a former federal and State prosecutor and have been handling criminal defense and personal injury cases for over 17 years. The above answer, and any follow up comments or emails, is for informational purposes only and not meant as legal advice.


  3. I agree with Mr. Rothstein, but I don't think you should be worrying about who has the burden of proof. Since you don't know, you should be looking for competent counsel to defend the case.

    Malicious prosecution falls into the torts category, and a personal injury attorney with defense experience is likely your best bet.

    This does not constitute legal advice or the engagement of my services as an attorney.


  4. The plaintiff has the burden of proof for any allegations they make. The defendant has the burden of proof on any defenses or counterclaims they make.

    If the victim has renters or homeowners insurance, they should turn this suit over to their carrier and demand that the carrier defend the action.

    Legal Disclaimer:

    If this information has been helpful, please indicate below.

    Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.

    Legal Disclaimer: If this information has been helpful, please indicate below. Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.


  5. The plaintiff has the burden of proof by a preponderance of the evidence to prevail in a civil suit.

    The responses provided to your questions are not legal advice, do not create any attorney client relationship, and are provided for informational purposes only.

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