4. Burden and Standard of Proof Flashcards
What is the legal burden of proof?
The legal burden of proof, or the burden of proof, is the obligation placed on a party to prove or disprove a disputed fact. In criminal law, the prosecution usually bears the legal burden of proving all the elements of the offence beyond reasonable doubt.
What is the evidential burden of proof?
The evidential burden of proof involves the requirement to present prima facie evidence on an issue sufficient to justify a judicial decision in favor of the party that carries the burden. This burden requires the party to show that there is enough evidence for the issue to be considered by the tribunal of fact.
Who decides if a party has discharged a legal burden?
The tribunal of fact, which can be either the jury in a jury trial or the judge in a bench trial, decides if a party has successfully discharged the legal burden based on the evidence presented during the trial.
When will a judge make a decision on the evidential burden?
A judge typically makes a decision on the evidential burden at the close of evidence or after the prosecution has presented its case, determining if the evidence is sufficient to require a defence or justify a decision by the tribunal of fact.
Can a judge change their mind about the evidential burden?
Yes, a judge can change their mind regarding the evidential burden if new evidence emerges or if, upon further consideration, the judge reassesses the sufficiency of the evidence previously presented.
How do the prosecution discharge the evidential burden?
The prosecution discharges the evidential burden by presenting enough evidence that, if believed, could justify a finding by the tribunal of fact that the legal burden has been satisfied. This includes presenting sufficient evidence to support a guilty verdict beyond reasonable doubt.
What is the general rule regarding who bears the legal burden in criminal cases?
The general rule in criminal cases is that the prosecution bears the legal burden of proving the defendant’s guilt beyond reasonable doubt. This includes proving each element of the offence charged and even negative elements of an offence - for example absence of consent in a rape case
What are three exceptions to the general rule of who bears the legal burden in criminal law?
Three exceptions to the general rule in criminal law include: 1) Insanity, where the defence bears the burden of proof; 2) Express statutory exceptions, where legislation specifies that the defence bears the burden; 3) Implied statutory exceptions, where legal interpretation suggests that the burden rests on the defence.
Who bears the legal burden when the defence of insanity is raised in a criminal case?
When the defence of insanity is raised in a criminal case, the legal burden shifts to the defence to prove the defendant was legally insane at the time of the offence, to the standard of ‘balance of probabilities’ rather than ‘beyond reasonable doubt’.
If accused is alleged to be under a disability rendering them unfit to plead then the issue may be raised by either prosecution or defence, btu who bears burden and to what standard
If the prosecution contend that the accused is under such a disability and this is disputed by the defence, the burden of proof is on the prosecution to satisfy the court beyond reasonable doubt
If the defence contend that the accused is under such a disability, the burden is on the defence on a balance of probabilities
If the accused bears both the evidential and legal burden, such as with insanity, how is the evidential burden discharged?
If the accused bears both the evidential and legal burden on a particular issue like insanity, the evidential burden is discharged by presenting evidence that might satisfy the jury about the probability of the claim being true.
How is the evidential burden discharged when the accused bears it but not the legal burden, such as with self-defence?
When the accused bears the evidential but not the legal burden on an issue like self-defence, the evidential burden is discharged by introducing evidence that might leave the jury in reasonable doubt about the prosecution’s claims.
Examples of statutory exceptions where both evidential and legal burden is on defence
murder,
Prevention of Crime Act 1953, s. 1 -
- In the case of an offensive weapon per se, if possession in a public place is proved, the onus is on the accused to prove on a balance of probabilities lawful authority or reasonable excuse for the possession
- In the case of an article not made or adapted for use for causing injury to the person, if it has been proved that accused carried it with intention of using it to injure, the onus is on the accused to prove on a balance of probabilities a lawful authority or reasonable excuse
it shall be for the defence to prove that the person charged was acting in pursuance of a suicide pact between him and the other
When is the evidential burden on defence but legal burden on prosecution
self defence, duress, alibi
What is standard of proof for prosecution + exception
Standard required by prosecution is is beyond all reasonable doubt
In a prosecution under the Mental Capacity Act 2005, s. 44, for ill-treatment or neglect of a person who lacks capacity (see B2.180), the prosecution must prove lack of capacity only on a balance of probabilities
what is the standard of proof for defence
on the balance of probabilites
what is the usual direction when the legal burden is on the prosecution
It is the duty of the judge in the summing up tp make it clear to the jury what standard of proof the prosecution are required to meet
- If a judge fails to give this direction then the fact the standard was stressed by the advocates in their speech is not sufficient
There is no set formula but judges are wise to adopt one
- The favoured phrase is that - before the jury can return a verdict of guilty, they must be sure that the accused is guilty
what is the direction where the legal burden is on the defence
The classic definition of proof on a ‘balance of probabilities’ is that of Denning J in Miller v Minister of Pensions [1947] 2 All ER 372, at p. 374: ‘If the evidence is such that the tribunal can say: “We think it more probable than not”, the burden is discharged, but, if the probabilities are equal, it is not.’
