Question 1

Who has the burden of proving the elements of the offence?

Accepted Answer

It is always the prosecution.

Question 2

What is the standard the prosecution must prove?

Accepted Answer

The standard to which prosecution proof is always `so that you are sure of guilt’ which is a simple and modern way of saying `beyond reasonable doubt’.

Question 3

What is the legal burden?

Accepted Answer

A legal burden is simply the requirement to prove an element of your case to a prescribed standard.

Question 4

Does the defence ever have the legal burden?

Accepted Answer

In the majority of cases, it will be stated `the defendant has nothing to prove in this case’. However, an example where the defendant has the burden to prove something would be one of the defences such as `insanity, DR or automatism’. The standard for anything that the defence has to prove is the balance of probabilities.

Question 5

What is the evidential burden?

Accepted Answer

Before any issue is put to the jury, the judge has to be happy that the jury has heard some evidence on which it could find that the issue has been proved. The burden to raise some evidence to satisfy the judge that the matter should be argued before the jury is the evidential burden.

Question 6

In what cases does the legal and evidential burden become detached?

Accepted Answer

Self-defence. The defence raise `some’ evidence to pass the judge and the prosecution is on notice that, to prove that the use of force was lawful, it has to disprove self-defence.

Question 7

Do the prosecution have to disprove duress?

Accepted Answer

The prosecution are not required to predict that the defence of duress will be relied upon but, if sufficient evidence is raised to leave it as a live issue, it is the prosecution that must disprove it beyond reasonable doubt.

Question 8

Do the prosecution have to disprove an alibi?

Accepted Answer

In the case of an alibi, the Judge must direct the jury that although the defence have raised the defence, it is not a matter for them to prove. The prosecution retain the burden of disproving the alibi so the jury are sure.

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Legal and Evidential Burden Flashcards

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