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
1
, 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If no sufficient evidence the issue will be withdrawn
This withdrawn will not be a breach of ECHR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??
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
1
, 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??
2
