Burden and Standard of Proof

Evidence SGS 2


Burden and Standard of Proof
SYLLABUS REFERENCE
11. Burden and standard of proof
 The distinction between the legal burden and the evidential burden of proof,
 The general rule concerning the incidence of the burden of proof in criminal cases and
the exceptions to it,
 The standard of proof required in criminal cases when the legal burden rests on the
prosecution,
 The standard of proof required when the legal burden rests on the defence.

READING:
Required Reading
 Blackstone’s Criminal Practice F3

Further Reading
 CLS Evidence Manual 2014, Chapters 2 and 3
 Keane and McKeown, The Modern Law of Evidence, 10th Edition, pp.83-118


 What this is about:
o In a criminal trial, who has to prove what and how much do they have to
adduce to prove their case

 What we’re looking at:
o Legal burden & evidential burden
o Standard of proof
o Express & implied statutory exceptions
o Reading down & reverse burdens

Legal & Evidential burden
 Legal burden
o is burden of PROOF
 Referred to by the persuasive burden
o Obligation to prove a fact or facts in issue ( on P)
o If you satisfy the legal burden, you’re FIS is demonstrated and you win!
o What’s the standard of proof with the legal burden?
 Beyond reasonable doubt – the prosecution bears the legal
burden
 Certain so that you are sure – this is the current term (“beyond
reasonable doubt” is not the current terminology – but it’s what
“certain so that you are sure” means)
 Balance of probabilities: that’s the standard for accuse (defence)
 Evidential burden
o Obligation to adduce sufficient evidence on a fact in issue to satisfy the
judge that such issue should be considered by the tribunal of fact

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, Evidence SGS 2


 If no sufficient evidence the issue will be withdrawn
 This withdrawn will not be a breach of ECHR
o To establish something as an issue or a new issue to be able to discuss it
in a trial
o Evidential burden is always on DEFENCE
 If it is discharged so that D is put before the jury the LB is then on
the P to disprove
o They’re about doing enough to show the court that they should consider
something
o EG: Common example is self-defence – where the defence relies on self-
defence they rely on an evidential burden to show whether or not it
should be allowed
o Evidential burden has a MUCH lower standard of proof
o Often party bearing the legal burden on an issue also bears the evidential burden
 P bear the burden to prove all elements

 In a criminal case, Jury decides whether the legal burden is discharged, and the
judge decides on the evidential burden.

Discharge of Burden by P:
 Where P bears the evidential burden, it is discharged by adducing sufficient
evidence to justify as a possibility of finding by the jury that the legal burden is
discharged

 Where P bears both burdens:
o and discharge the evidential burden: the issue will have to go before the
jury to determine whether or not the legal burden is discharged
o Fail to discharge the evidential burden: they will fail on that issue b/c
judge will withdraw the issue from the jury

Discharge of Burden by D:
 Where D bears both the legal and evidential burden: the evidential burden is
discharged by adducing such evidence as might satisfy the jury on what the D is
called upon to establish
o Ex: insanity
 If D bears the evidential and not the legal burden the evidential burden is
discharged by adducing of such evidence as might leave the jury in reasonable
doubt

Example: Think about an assault case:
 Facts in issue: Identity, Elements of the assault case
 Prosecution has to prove the facts in issue and they prove the facts in issue and
so the defendant should be guilty
 The defendant will say that it was self-defence – Then what happens??


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