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CRIMINAL LITIGATION
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Lecture notes of 4 pages for the course Criminal Law at ULaw (CRIMINAL LITIGATION)
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11. Burden and standard of proof1. the distinction between the legal burden of proof and the evidential burden
2. the general rule concerning the incidence of the burden of proof in criminal cases and
the exceptions to it
3. the standard of proof required in criminal cases when the legal burden rests on the
prosecution
4. the standard of proof required when the legal burden rests on the defence
1. Examinable material on the distinction between the legal burden of proof and the
evidential burden will consist of
a. consideration of legal and evidential burdens,
Legal and Evidential Burdens
The legal burden of facts in issue is on the prosecution. If insanity is raised by way of
defence, the legal burden shifts to the defence.
The Legal Burden
The standard of proof required to discharge the legal burden varies according to whether the
burden is borne by the prosecution or defence (prosecution - beyond reasonable doubt, if
burden on the accused it is on a balance of probabilities). The accused NEVER bears the
heavier burden of beyond reasonable doubt. The question whether a party has discharged a
legal burden borne by him is decided by the tribunal of fact, whether jury or mags.
The Evidential Burden
Not a burden of proof but the burden of adducing evidence or the duty of passing the judge',
in other words, the burden imposed on a party to adduce sufficient evidence on a fact or
facts in issue to satisfy the judge that such issue or issues should be left before the tribunal
of fact. In some cases, the evidential burden on some of the facts in issue will be on one
party and the evidential burden on another party. Very often a party bearing the legal burden
on an issue also bears the evidential burden.
In cases of many defences (including for example self defence), the evidential burden is on
the accused and the legal burden is on the prosecution. If there is sufficient evidence for the
defence to be put before a jury, the legal burden of disproving it will be on the prosecution.
b. Discharge of Burdens Borne by the Prosecution
If the evidential burden on a particular issue is borne by the prosecution, it is discharged by
the adduction of sufficient evidence to justify as a possibility a finding by the tribunal of fact
that the legal burned on the same issue has been discharged, in other words 'such evidence
as, if believed and if left uncontradicted and unexplained, could be accepted by the jury as
proof. If the prosecution bear both the evidential and legal burden on a particular issue and
discharge the evidential burden, it does not necessarily follow that they will succeed on that
issue - the issue will go before the jury for them to determine whether or not the legal burden
has been discharged. If prosecution have both burdens and fail to discharge the evidential
burden, they will necessarily fail on that issue, since the judge will withdraw that issue from
the jury.
c. Discharge of Burdens Borne by the Defence
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