Unit 11 Burden and Standard of Proof

Question 1

What do we mean by ‘legal’ burden of proof and what do we mean by ‘evidential’ burden of proof?

Answer 1

N.B. I’m summarising my understanding here - none of this is quoted from Blackstone’s

Legal burden of proof

• This is the standard to which an issue has to be proven in order for the issue to count as concluded

Evidential burden of proof

• Arguably this is a misnomer
• In reality, this is about the quality and the quantity of evidence that needs to be adduced in order for an issue to be left to the jury

Good illustration: self-defence

• The evidential burden is on the defendant: i.e. the question whether D acted in self-defence will only be left to the jury if the judge is satisfied that there is sufficient evidence to justify leaving it to the jury
• If it is left to the jury, then the prosecution has to prove beyond reasonable doubt that D did not act in self-defence (i.e. the legal burden of disproving then rests on them)

N.B. generally speaking the evidential burden for defences will be on D and then the legal burden to disprove is on P (like in self-defence)

Question 2

What is the legal burden to which P has to prove facts (where the burden is on them)? What is the parallel burden on D?

Answer 2

Where the legal burden is on P, P must prove the fact in question beyond reasonable doubt (the way this is put to the jury is that they ‘must be sure’).

By contrast, D only has to prove issues ‘on balance of probability’. This obviously makes sense. If, on balance of probability, the fact in question is established, then P’s version cannot be true ‘beyond reasonable doubt’.

Question 3

What is the general rule regarding where the legal burden rests and what are the exceptions to it?

Answer 3

General rule: P bears burden of proving all elements in the offence BRD -> includes proving negatives (e.g. absence of consent), though limited to what is reasonably required of P when seeking to prove a negative

Exceptions

(1) Insanity -> D bears both the legal and the evidential burden (but n.b. legal burden only ‘beyond reasonable doubt’)

(2) Express statutory exceptions

• (a) diminished responsibility -> D bears both legal and evidential burdens (on balance of probability)
• (b) if P proves possession of offensive weapon in public place → D bears burden of proving on balance of probability lawful authority or reasonable excuse for possession. But if the item not made for use causing injury, P bears burden of proving that D carried w/ intent of using it to injure
• (c) suicide pact → D bears both legal and evidential burdens (on balance of probability)

Question 4

What directions must the judge give in relation to the standard and burden of proof?

Answer 4

• Judge must make clear in summing-up to jury what standard of proof P is required to meet regardless of whether jurors already know, or advocates mentioned
• Legal burden on P → “sure that A is guilty”, “sure that X is telling the truth”, etc
• Legal burden on D → “more than equal”