Burden Of Proof

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In a court hearing or trial, the side with the burden of proof is the side that has the task of proving the facts to the satisfaction of the judge or jury. The rules about which side bears the burden of proof have to be considered for both criminal and civil actions.

In English criminal law, the burden of Proof generally lies with the prosecution -- it has to prove all the facts that establish the guilt of the accused, except those which are assumed to be obvious (see judicial notice). The standard of proof is, nearly always, beyond reasonable doubt.

If the prosecution does not discharge the burden of proof, to the requisite standard, the accused will be acquitted.See R v woolmington (1935), for a textbook example.

However, some statutory and common-law provisions have the effect of shifting the burden of proof to the defendant. For example, the prosecution does not have a duty to prove that the defendant is sane, or was incapable of moral reasoning. If these points are used as a defense then the defendant will generally have to prove them, at least to the 'balance of probabilities' standard (see reverse burden of proof). In addition, there are many cases in which the defendant may carry an evidential burden; that is, the defendant will have to adduce evidence to support his case, although he may not be required to prove it.

In a civil hearing, the side the brings the action usually has the burden of proof overall, although a more accurate rule is he who asserts must prove.

In some trials or hearings the determination of burden of proof is straightforward. More often, however, there are subsidiary matters to the main facts in issue, and the question then arises who has the burden of proving those. There are many technicalities concerning the burden of proof in such cases, some of which are created by statute and some of which have been developed by the courts over a period of time. What follows is a few examples; you should not assume that this is an inclusive list, by any means.

  1. In a criminal trial, the side that wishes to adduce evidence has the burden of proving that it is admissible (see admissibility of evidence). For example, if the defendant wishes to adduce evidence that might be regarded as Hearsay, and this evidence is contested by the prosecution, the defence will have to prove that the evidence is not hearsay, or that it falls within one of the exceptions to the hearsay rule.
  2. In a criminal trial, if the defendant argues that his confession was extracted under duress, then s.76 of Pace imposes on the prosecution the duty of proving that this was not the case, that the confession was made freely.
  3. In a civil action for breach of contract, a party who wishes to rely on an exclusion clause -- whether that party is the claimant or the defendant -- must show that the clause was validly incorporated into the contract.
  4. In an action in Tort, it is now generally accepted that a plea of res ipsa loquitur does not have the effect of shifting the burden of proof to the defendant. It does, however, create for the defendant an obligation to raise some evidence to show that he was not at fault.

Criminal Law