4. Burdens of Proof & Presumptions Flashcards
Comparing Burdens
Legal burden: burden of satisfying the court to the appropriate standard on a particular issue
Evidentiary burden: burden of adducing enough evidence on a particular issue to warrant the court at least considering it.
Tactical burden: obligation to begin producing counter-evidence
General principles: he who asserts must prove.
Legal Burden
Legal burden: the burden of satisfying the court to the appropriate standard on a particular issue
The legal or persuasive burden of proof is the obligation of a party to meet the requirement of a rule of law that a fact in issue be proved (or disproved) either by a preponderance of the evidence or beyond reasonable doubt,as the case may be.
The definition is based on r 1.04 of the American Uniform Rules. The words in parentheses are intended to cover the case in which a party hasto negative a particular fact, as the prosecution has to negative consent on a charge of rape. The words are also apt to cover a case in which a party has to negative a particular fact if the opposing party adduces sufficient evidence of its existence.An example would be provided by a murder trial at which self-defence is pleaded; if there is sufficient evidence to raise a reasonable doubt in the minds of a reasonable jury, it is incumbent on the prosecution to prove beyond reasonable doubt that theaccused was not acting in self-defence.
Evidential Burden
Obligation to show, if called to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue, due regard being had to the standard of proof demanded of the party under such obligation.
It is not a burden of disproof.
The concluding clause is designed to meet the point that the amount of evidence required to induce a judge to leave an issue to the jury varies accordingto whether the case is civil or criminal, and whether the party bearing the burden is plaintiff, prosecutor, defendant or accused.
Test for determining evidential burden, Taylor’s test: the right test for determining the incidence of the burden of proof is to consider, first, which party would succeed if no evidence were given on either side and, secondly, what would be the effect of striking the allegation to be proved out of the record. The onus lies on whichever party would fail as a consequence of one or other of these steps being taken.
Basic rule in respect of legal and evidential burdens
Party bearing the legal onus generally also bears the evidential onus.
In criminal cases, the Crown must lead evidence in support of the essential ingredients of an offence
In civil defences, the evidential burden will rest on the person seeking to claim a defence, which should usually be made clear on the pleadings.
Ultimate Burden and shifting burdens
If a party discharges a legal burden, the onus will shift to the other party as they will lose the case unless they discharge their burden.
The burden that is shifting is not the burden of establishing a particular issue, or adducing evidence of it. The “ultimate issue in the litigation” is shifting: the burden of proof on the whole case (for example, proving elements of the offence shifts burden to any defence).
(a) The fact that in some cases one party has the legal burden on one issue, while the opposite party has it on another issue, has an important bearing on one of the senses in which the burden of proof is said to shift. If the issues are considered successively, it is possible to say that, if A discharges the legal burden on the first issue, the onus of proof shifts to B because B will lose the case unless B discharges B’s legal burden on the second issue. It must be borne in mind that the burden which is then said to shift is not the burden of establishing a particular issue, nor the burden of adducing evidence with regard to it, but the burden on the ultimate issue that must arise in any litigation, namely, which party is entitled to judgment, or “the burden of proof on the whole case”
(b) Example: In an action brought by the holder against the acceptor of a bill of exchange, the ultimate decision depends on whether the plaintiff is a holder in due course. The plaintiff might begin by proving that the plaintiff was the holder of a bill signed by the defendant as acceptor. The plaintiff will succeed unless the defendant makes good some such defence as fraud in the negotiation of the bill. In turn, the defendant will succeed unless the plaintiff makes good a reply such as value in good faith subsequent to the fraud. “[T]his shifting to and fro is often described as a shifting of the burden of proof and so it is, but it is a shifting of the ultimate burden”
Two categories of presumptions
1: presumption being a conclusion which must be drawn until the contrary is proved;
Example - presumption of innocence or presumption of sanity in criminal cases
2: a conclusion that a fact (or ‘presumed fact’) exists which may or must be drawn if some other fact (the ‘basis fact’) is proved or admitted
Two instances here: presumptions of fact, and presumptions of law
PRESUMPTION OF FACT
Not true presumptions - just recurring examples of circumstantial evidence. For example, presumption of continuance, presumption of guilty knowledge arising from possession of stolen goods
PRESUMPTIONS OF LAW
Arbitrarily applied rules: Age of incapacity – protections afforded if accused of a crime whilst under age; Presumption of death if missing for over 6 years
