Law of Evidence

In the law of evidence, the burden of proof refers to the duty that is placed on a party to either prove or disapprove the allegation or a disputed fact by admissible evidence. Burden of proof can also define the party that bears this burden. Also, it can be defined as the required evidence to determine the basis for filing a lawful action with a court of law. The burden of proof in the cases that fall under the category of criminal cases is placed on the side of the prosecution, where the prosecutor gets charged with the responsibility of revealing that the defendant is guilty of a specific crime before the judges may convict him/her. In some cases, the defendant may have the burden of ascertaining the existence of particular facts that can give rise to a defense, for instance insanity plea. On the other hand, in civil cases, the burden of proof is placed on the plaintiff, but the defendant can still be required to ascertain some defenses.

Burden of proof can also be described as the quantum of proof or burden of persuasion, where the party that has the burden of proof must endeavor to establish or disprove factual issue. In criminal cases, the prosecution is expected to give proof which is beyond a reasonable doubt that the defendant is guilty of certain offence. This means that, in cases that fall under the category of criminal cases, the standard of proof should be beyond a reasonable doubt to ensure fair treatment of both parties.

Standard of proof can be defined as the degree of evidence that a prosecuting attorney in a criminal case or plaintiff in a civil case must submit in a trial so as to win. Different cases require different standards of proof depending on the nature and seriousness of the case in question. The most common standards of proof comprise of:

1. Beyond a reasonable doubt. Normally, this standard is applied in criminal cases, whereby the prosecutor is expected to provide adequate proof on the case in question to the extent that the jury have no reasonable doubts that the accused person (defendant) did exactly what he/she is being charged with having done.
2. Balance of probabilities. This standard is applied in civil cases. For any party to prove a case applying this standard, it must reveal that it is more probable than not, or it is more likely that his/her argument is true. For example, this standard can be applied in fault divorces cases.
3. Clear and convincing evidence. This standard can also be used in civil cases, for example, in cases that involves the termination of parental rights. For any party to prove a case using this standard, he/she must reveal something more probable than not, although not as much as beyond a reasonable doubt as in the criminal cases.

In civil cases, the standard of proof applied is balance of probabilities. This implies that if one party is in a position to prove that something is more probable to be true than not, then the party will be successful in asserting what it seeks to prove before the court. Therefore, in proving any facts the burden of proof will undoubtedly be discharged as long as the jury is convinced that it is more likely than not. In case the probabilities from both parties are equal, then the jury will not discharge the burden of proof.

Additionally, in civil cases the burden of proof is applied to the party that seeks to affirm the existence of the fact. For example, if a party is trying to affirm the existence of an oral contract, then the party will normally have to prove that there was an oral contract. In case the other party denies the existence of such a contract, it will not be their responsibility to prove that there was no oral contract, unless they are trying to affirm the existence of additional facts.

In criminal cases, the judges in a court clarify the standard of reasonable doubt to jurors in several ways. Instructions by the federal judges state that proof beyond a reasonable doubt refers to a proof that provide a convincing character, and that a rational person would not vacillate to act upon. Also, state jury normally describe the standard of proof by informing the jurors that they have a reasonable doubt about the guilt of the defendant if, based on the entire evidence in a case, they will certainly not be comfortable with a criminal conviction. In providing the reasonable doubt directive, the judges often remind the jurors that a criminal conviction inflicts various hardships on a defendant, like incarceration, fines, public humiliation and sometimes the forfeiture of property. Reasonable doubt is undoubtedly the highest standard of proof applied in all judicial proceedings.

In civil proceedings, the standard of proof can be either proof by means of preponderance of the evidence or through clear and convincing evidence. Both standards are lower burdens of proof compared to reasonable doubt. A preponderance of the evidence implies that one party in a case has more evidence in its favor than the other party, even if it is by smallest degree. On the other hand, clear and convincing evidence is the evidence that sets up the truth of a disputed fact or issue by a high probability. Contrary, criminal litigation applies a higher standard of proof since defendants in criminal cases regularly face the deprivation of life or lack liberty if convicted, whereas defendants in civil cases are usually liable to a fine equal to the sum of money necessary to compensate the damages if the plaintiff wins the case.

Furthermore, in criminal litigation, the legal burden of proof remains on the prosecution side for the entire period of the trial. This implies that the defendant has no legal burden in relation to the significant components of the offence during court proceedings. The logic behind this is the fact that all individuals are entitled to a fair and just trial in a situation where presumption of innocence happens to be a basic right. For example, in legal proceedings, it would not be fair to make an individual accused of a particular crime refute the accusation, and convict and punish him/her if he/she is unable to do it.

This rule can be explained through Woolmington v DPP case which involved Reginald Woolmington, a farm labourer, who had been accused of killing Violet who was his wife. In this case, it was evident that after three months of their marriage, Violet left Woolmington and went to live in her mother’s house. Not long after Woolmington took a shotgun and went to the Violet’s mother house where he shot and killed his wife. When Woolmington was taken to court, he argued that the killing was accidental and his intention was only to scare his wife so that she would think that he was going to kill himself. Woolmington was arrested and charged with willful murder.

At the initial hearing in court, the jury was directed that if, due to “dispassionate survey”, they had a reasonable doubt, they bore the responsibility to set the defendant free. However, if the jury had no doubt that the killing was intentional it was their obligation to convict. Despite the fact that this direction appeared as perfect and was even commended by the Lords later, the jury did not agree on this.

On the other hand, during the trial followed by the hearing in the House of Lords originated, the judges received the following directions: in all charges of murder where there is adequate proof of the fact of killing, any situations of mitigation, justification or excuse that the accused (defendant) wants to rely on must be provided by him/her unless they arise from the evidence produced at the trial. In Woolmington’s case, there was a presupposition of malice unless proof of the contrary arose, and this became a law. Additionally, an individual guilty of offense that caused death has an obligation of convincing the judges that the incident was not murder in fact. In case the defendant (accused) was not able to do this, and the judges were content that the wife died due to the injuries caused by the defendant, the defendant would be found guilty of murder. The jury found Woolmington guilty of intentional murder of his wife (Violet).

Later, Woolmington appealed this case on the basis that the judge who made the ruling during his trial had misdirected the jury, but his request was not accepted. However, because this decision entailed a point of law of public importance, the Attorney General accepted the case to be brought in the House of Lords, which reversed the conviction. The House of Lords decided that it is the responsibility of the prosecution to provide proof of both death due to voluntary act by the accused person (defendant) and the malice of the defendant. On the other hand, the defendant was allowed to give evidence or explanation in relation to the events. In case the jury is contented with his explanation or on evaluation of all the evidence provided by the parties involved is in a state of doubt whether or not the act was not intentional or provoked, the defendant is at liberty to be acquitted (even if his explanation is unacceptable). Therefore, it was the duty of the prosecution to provide proof that Mr. Woolmington killed his wife intentionally, rather than obligation of the defendant to prove that he had some explanation, excuse or justification for the killing.

In a criminal case like that of Woolmington, the prosecution should produce a standard of proof which must be beyond a reasonable doubt. This kind of standard does not require complete certainty, but must have a high degree of probability. Additionally, the ruling of this case is subject to some exceptions, and in this case, the rules of substantive law establish the party that carries the burden of proof in relation to the case proceedings. For instance, if the defendant comes up with the defense of insanity, he/she will have the legal burden to prove it. In a situation where it is suspected that the defendant suffers from a certain disability that render him/her not unable to stand trial or plead, the matter can be raised by either side, the defense or the prosecution. In case the prosecution raises the issue, it is mandatory for them to prove the matter is beyond a reasonable doubt. On the other hand, if the defense raises that issue, it must prove the matter is on balance of probabilities.

An additional exception to the ruling in Woolmington’s case arises in a situation where the statute specifically places the burden of providing particular issues on the defendant, even though the legal burden for all other matters remains with the prosecution. A precise example can be traced in Section 2(2) of the Homicide Act 1957. The example in this section places the burden of determining the defense of diminished responsibility on murder charge on the defendant.

Statutes can still put the legal burden of proof on the side of the defendant. Magistrates Court Act 1980 Section 101 states that in case a defendant relies on any proviso, excuse, qualification or exception, the legal burden of proving it shall be placed on him. Additionally, this must focus on the Human Rights Act 1998. It only applies to the statutes containing exceptions like “provided that”, “unless” and “except where”. This is explained in the Gatland’s case which entailed application of Highways Act 1980 Section.161 (1). This Act states that any person who deposits anything on the highway with no legal authority or excuse will be perceived as guilty of an offence. In Gatland’s case, the duty of providing proof that the defendant actually placed something on the highway was imposed on the prosecution. Furthermore, it was the responsibility of the defendant to provide proof that they had legal authority or excuse pursuant to Magistrates Court Act 1952 Section. 81 (which is now Section. 101).

In the ruling of Woolmington’s case, these exceptions were described as "reverse onus provisions". The literary meaning of “onus” is “burden of proving”. Since such provisions pose a threat to undermine the universal presumption of innocence, they are subject to restrictions. This means that they must not exceed what is essential to attain their legal aim.

In Sheldrake v DPP [2004] UKHL 43 case which concerned the application of the Road Traffic Act 1988, the House of Lords scrutinized the nature of the burden of proof. The case was about a defendant accused of driving while intoxicated. With respect to Section 5(2) of the Road Traffic Act 1988, the burden of proof is placed either on the defense or prosecution. The defense side was expected to prove that there was no probability of the defendant driving his own car. In giving his judgment, the burden of proof was placed on the defendant.

In relation to David’s case, he was arrested participating in London-Brighton Super Car Rally, and was accused of going against Road Traffic Act 1998 Section 13. This section prohibits any person from participating in any form of competition or trial using a vehicle on a public road unless authorized by the Secretary of State. David denies the charges claiming that his participation in the car rally was authorized. On the other hand, the prosecution strongly believes that David violated the law.

Although David has a document to prove that London-Brighton Super Car Rally was legal, such document is not available in the register of the Secretary of State who authorizes such car rallies. Therefore, if the court places the burden of proof on David, he has to prove to the jury that the car rally was authorized by the Secretary of State. The fact that he has the letter which shows that Andrews Elite Rally Ltd was authorized to participate in the rally can help him to convince the jury that there was a probability that the Secretary of State authorized that car rally. Despite the fact that the name Andrews Elite Rally Ltd was missing in the register of the Secretary of State, David can still convince the jury that there was the possibility that a copy of authorization document might have been misplaced in the Secretary of State’s office. In this case, the standard of proof to be applied by the defendant is the balance of probabilities. This means that David must endeavor to reveal that it is more probable that the rally was authorized by the Secretary of State than not. In case David manages to give concrete evidence to prove to the jury that the car rally was authorized he will be set free.

On the other hand, if by any means the jury put the legal burden of proof on the part of prosecution, the prosecution must provide adequate proof to convince the jury that the car rally was not authorized by the Secretary of State as claimed by the defendant. This means that the prosecution must prove that the defendant is guilty beyond a reasonable doubt. Therefore, the standard of proof on the side of prosecution must be beyond a reasonable doubt. In case the jury is not satisfied with the proof from the prosecution, then David will be set free. Conversely, if the jury gets convinced that the car rally was not legalized, David will face the law.