Legal and Evidential Burden Flashcards
What is the legal burden?
A question of fact - Proving the elements of the case (Factual burden)
Who is the legal burden on proving elements on?
The prosecution
What is the legal standard of proof?
Beyond reasonable doubt
When would a D have a legal burden to prove something?
If they are proving a defence, such as, insanity
Is the legal burden of proof being discharged a question of fact?
Yes
What is the evidential burden?
A question of law – Proving all of the elements of the offence
Does the burden shift to the defence if they begin to call evidence?
No, it won’t. they are simply contesting issues. It is still for the prosecution to prove their case.
What is the link between legal (factual) burden and evidential burden?
If you have legal burden to prove fact, you have evidential burden of ‘passing the judge’ with the same evidence
What is ‘passing the judge’ in self-defence?
If the defence is raised, D will only need to show some evidence to ‘pass the judge’ that it acted in self-defence
Once passing the judge in self-defence, who is the burden on?
The burden shifts back fully to the prosecution to show that the force was lawful (disprove self-defence)
Is there a standard of proof for showing self-defence?
No actual standard of proof required
Does insanity have a defence burden?
Yes
Who must prove duress?
The prosecution must disprove it
Who must prove an alibi?
The prosecution must disprove it
