Burden and standard of proof Flashcards
What is the standard of of proof if the legal burden rests on the prosecution?
Being sure
What is the standard of proof if the legal burden rests on the defence?
Balance of probs
Who decides whether the standard of proof has been met?
Tribunal of fact
What is the evidential burden?
The burden to produce sufficient evidence for the tribunal of law to consider it appropriate to leave an issue before the tribunal of fact.
Threshold past which question is left to jury.
Normally, who bears the evidential burden?
The party which holds the legal burden
When are the legal and evidential burdens split?
Most defences - i.e. self defence.
D has to provide sufficient evidence that it could be self defence (balance of probabilities). P then have to prove that it was not.
How is an evidential burden discharged by the prosecution?
Producing evidence that if left uncontradicted could be accepted as proof
Who normally bears the legal burden?
P
Must prove all the elements necessary to establish guilt, including proving negatives (i.e. in Rape must prove someone did not consent)
What are the three exceptions to the general rule on legal burden of proof?
Insanity
Express statutory exceptions
Implied statutory exceptions
What is the operation of the defence of insanity?
If accused raises the defence, they must prove it on the balance of probabilities
Note, this is separate from being unfit to plead which can be raised by either party
What special power do the prosecution have in murder trials where either insanity or diminished responsibility are used as a defence?
P can adduce evidence to prove the other of the two defences to the criminal standard of proof.
Two examples of express statutory exceptions to the general rule for the legal burden?
Diminished responsibility for murder - must be proven by D
Offence of carrying an offensive weapon. P must prove it was carried in public, then D must prove (to civil standard) that there was lawful authority or reasonable excuse
What happens if D meets the evidential burden for a defence?
It must be put to the tribunal of fact
What is P’s role if there is sufficient evidence of a defence adduced by D?
P must then prove to the criminal standard that the defence does not hold
Under the mental capacity act 2005 s.44 (ill treatment or neglect of a person who lacks capacity) - what is the standard of proof P bears to prove the person does not have capacity?
Civil standard
Balance of Probabilities
