Burden of Proof Flashcards
what is the burden of proof?
where one party, either the pursuer or defender must prove the facts they wish to lead in the case.
what are the different types of burden of proof?
persuasive, evidential and tactical.
what is the persuasive burden of proof?
This is allocated to the party in the case who requires to satisfy the court on the particular issue in order to succeed in the case.
what is the evidential burden of proof?
the burden to produce sufficient evidence for the court to consider it. the evidential burden and the persuasive burden can lie on different parties. in a criminal trial the evidential burden can lie with the accused and the persuasive burden can lie with the prosecution.
what is the tactical burden?
this shifts during a case. so one gives evidence then the other needs to counter this.
what is the standard of proof? what are the two standards?
this is the amount and quality of evidence needed to satisfy the burden of proof in any matter.
these are beyond reasonable doubt (in criminal cases)
and on the balance of probabilities. in civil cases.
why do we need relevancy in cases?
The evidence given needs to be relevant to the case at hand. so cannot be irrelevant and nothing to do with the case. this can be seen in cases such as leading sexual history and previous convictions of the accused.
what is the case which demonstrates relevancy?
HM Advocate v Baillie- evidence of the accused liking the nazi party was needed as evidence? Yes
relevance of sexual history? which act do we look to to find these rules?
ss.274-275 into the Criminal Procedure (Scotland Act 1995 (CP(S)A 1995). These outlined the conditions under which evidence can be led about a complainer’s sexual history.
relevant case for the leading of sexual history evidence?
Wright v HM Advocate 2005 SCCR 780; he raped his neighbours wife, wanted to show that she fantasised about being abducted however this application was refused. accused wished to lead evidence about previous sexual advances made to him by her however, these were too remote in time and nature to be admissible under s 275. there was no connection between time place and circumstances. and this is a common law rule.
what is the situation around the disclosure of previous convictions?
these are usually not admissible in court as seen in s 101 and s166 of the Criminal procedure scotland act 1995
under what circumstances does the court allow previous convictions to be heard?
if the accused has been convicted of another offence which is similar to the one that he is accused of now-S266(4)
or where the accused asks quesions towards the complaner with a view to establish their bad character s266(4)(a)
or where the accused is asked questions regarding other convictions they have had which is disclosed to the jury already- s266(5A)
S270 this backs up S266 saying that the court may permit the prosecutor to asked questions about crimes the accused has comitted or been charged with, their bad character etc.
also S275 for sexual offences.
what are the matters around sufficiency?
it is the question of whether a party with the burden adduced sufficient evidence in law to discharge the burden? so for example the prosecution in a criminal case.
no case to answer- the defence say that there is not enough evidence to go ahead with the trial. this is outlined in s97 of the CPSA.
WHAT IS THERE TO SAY ABOUT THE WEIGHT OF EVIDENCE?
the court will place a certain amount of weight on evidence after it has been led. Gonshaw v HMA.
Credibility and reliability are given to the weight of evidence.
which article in the ECHR talks about the burden of proof?
article 6(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
