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The Burden of Proof Fortunately, we as Americans enjoy numerous liberty protections guaranteed by the Constitution that most people across the spectrum of human history have never known. One of these important protections focuses on the burden that prosecutors must overcome when proving criminal cases. This burden is on the state or federal government up until the time of conviction to prove that the defendant is guilty as charged. The state must prove every element of the crime charged. The burden is never on the defendant to establish his innocence or to disprove the facts necessary to establish the crime. In the majority of criminal proceedings, the state must prove their case beyond a reasonable doubt. The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a nation. The necessity of proof beyond a reasonable doubt is a constitutional right guaranteed by the due process clause of the United States Constitution. This protection is also guaranteed by Georgia statutes and the Georgia constitution. However, it is important to point out that proof beyond a reasonable doubt does not mean that a prosecutor must prove the case beyond all doubt, nor does it mean proof to a mathematical certainty. A number of Georgia cases, in considering the meaning of a reasonable doubt have defined it as (1) doubt for which a juror can give a reason, (2) doubt for which a specific reason can be given, (3) the doubt of a fair minded, impartial juror, (4) doubt which leaves the mind wavering, unsettled, and unsatisfied, and (5) doubt based on common sense and reason. There are some instances in criminal cases where the state's burden is reduced to having to prove a matter by the preponderance of the evidence. O.C.G.A. 24-1-1(5) provides in part as follows: "Preponderance of the evidence means that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than the other." In other words, the side with the most convincing evidence should prevail. Examples of where the state must only prove their case by a preponderance of the evidence include: 1. Where the state seeks to show that the defendant violated the terms of his probation; 2. In a Jackson Denno hearing to determine whether or not Miranda warnings have been given and/or whether a confession has been given freely and voluntarily; 3. In the case of a consent to search, it has been suggested that the state only needs to establish the consent of the defendant by a preponderance of the evidence; and 4. In a similar transaction situation, the state has the burden of proving by a preponderance of the evidence that the defendant is the person who committed the similar offense. The concept of burden of proof provides the fundamental foundation of American criminal jurisprudence. Without these burdens, our system of justice would likely closely mirror ones used in the Soviet Union and Nazi Germany.