Burden of Proof in Texas Criminal Cases

In a Texas criminal case, the State of Texas represented by the District Attorney’s office, possesses the highest burden of proof under the law. A San Antonio criminal defense attorney will explain during jury selection all of the burdens of proof separately.

The first basic element is reasonable suspicion, which is the element needed for the police to stop and detain a person. The attorney will enlighten the jury by explaining how little it takes for a police officer to legally effectuate a stop. The next level of proof is “probable cause”, which is more than reasonable suspicion. Probable cause is all that is necessary for a criminal defendant to be arrested, booked, set on bond, and stand for trial.

In its most basic form, probable cause essentially means that police are required to arrest someone if that person could be guilty of committing a criminal offense. The law encourages a police officer to err on the side of safety. When the arrested person does not contest the charges, then the court resolves the case usually through a plea agreement. However, when an arrested person disagrees with the charges, then the first time he is entitled to have a group of independent citizens review the case is when a jury is chosen. In Texas, the judge does not prescreen a case, so the only people who have reviewed the case are law enforcement and the district attorney.


It is important to note that when a jury walks into the courtroom, their level of respect for the judge, law enforcement, and the district attorney outweigh their respect for the defense counsel. Yet it is important to note that the role of the judge is to decide the law, and he does not know the facts of the case before the trial. The district attorney simply presents the facts received from law enforcement to the jury.

The next burden of proof to be explained during voir dire (a unique Texas name for jury selection) is preponderance of evidence, This is the common burden of proof in civil courts and it means that a jury must find that one side has presented evidence of greater weight than the other side. The unique analogy is that of the scales of justice – enough evidence is presented to tip the scale or there was more than 50% evidence favorable for one side.

The next level of proof is clear and convincing evidence. A San Antonio criminal defense lawyer will question how many jurors have children. A key question to ask jurors during voir dire how much evidence would be necessary would be necessary for the government to remove children from the home. Most jurors would reply that government would have to prove beyond doubt before taking children. Yet the standard of clear and convincing evidence needed to terminate parental rights and take a child away from the home is a lesser standard than the standard of beyond a reasonable doubt. A common question to ask when trying to describe beyond a reasonable doubt is whether someone is willing to bet their own children that a person is guilty beyond a reasonable doubt.

“Beyond a reasonable doubt” is quite simply the highest burden of proof in the courts today and it is dictated on the government by the Constitution. Each juror should voice their agreement that the burden of proof of beyond a reasonable doubt should be placed on the state and the jury plans to hold the government to that burden as required by the US Constitution.

Each crime contains specific elements on which the government bears the burden of proof. If the state cannot prove each and every element of the crime beyond a reasonable doubt, then each juror must be willing to return a verdict of Not Guilty. It is important in a Texas criminal defense case that the jury believes it is permissible to find someone not guilty when the law requires it, and that their jury service is no less valuable if they returned a Not Guilty verdict.

A ‘Not Guilty’ verdict does not mean that the jury disagreed with a law enforcement officer’s decision to arrest. The jury can vote Not Guilty and the police officer would still have done a commendable job.

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