Burden of Proof in Criminal Cases: Evidential and Legal Burden Explained

This article explains the concept of burden of proof in criminal cases, focusing on the evidential and legal burden. It discusses the responsibilities of the prosecution and the defendant, as well as the standard of proof required. The article also highlights the different defenses that can be raised and the burden of proof associated with them.

1- a) As per the law, the parties who claims a fact in the court must prove it. This theory
is called the burden of proof1. But this is not in the case. In Criminal cases, the golden
thread is that when the prosecution is worry to show evidence of a crime. Therefore, it
can be stated that suspect is recognised acquitted till he proves as guilty.
The burden of proof can be divided into an evidential burden and legal problem. Thus,
evidential load means, the duty to adduce proofs which are properly analysed an issue
during a trail where the Jury or Judge can permit to proceed with the case. This is in the
first stage of hearing the case2.
On the other side, during a trial, when the evidential load is fails which means issue is not
accepted in court to proceed further. If the prosecution cannot increase a prima facie case,
the defendant will prosper.
It is also analysed that evidential problem is not consider as a burden. This is all about to
increase an issue in the court to fit for consideration by the court. Further, winning the
evidential burden does not mean, the prosecution won the case. The prosecution has to
discharge the legal burden too.
The legal burdens mean once the prosecution proved evidential burden and the court
decides that there must be a case which has to be solve, the prosecutor must prove all
legally required elements of an alleged offense3. The prosecution has to release a party
from all legal terms and procedure
The defendant bears the legal burden in some instances too, such as, when proving
insanity or where an express or implied the provision which is related to statutory places
where legal problem is prove to be issue for the protectors.
The party bears the legal burden, bears the obligation to prove the evidential burden too.
But, this is not always. It is also stated that when common law disproves the legal burden
defences falls on the prosecution, the defendant must prove the evidential burden. For
instance, if the accused wants to prove an alibi in self-defense, the evidential falls on him.
Even though, both the prosecution and the accused need to discharge legal and evidential
burdens, the required standard of burdens differ for each.
There is no required standard of proof in evidential burden for both the prosecution and
accused. If prosecution or accused made the jury what they said is most likely true, then
they discharged their burden in proving evidential burden4.
1 Stolzenberg, S.N. and et.al., 2020. The prevalence of declarative and indirect yes/no
Questions when children testify in criminal cases of child sexual abuse in the United
States. Applied Cognitive Psychology. 34(1). pp.194-204.
2 Griffin, L., 2020. Reasons to Doubt: Wrongful Convictions and the Criminal Cases
Review Commission, by Carolyn Hoyle and Mai Sato.
3 Pennington, L., 2020. Using Qualitative Analysis to Add Depth to Scaled Responses in
Surveys of Jurors’ Trust in Legal Authorities in Criminal Cases.
4 Cass, R.A. and et.l., 2020. Administrative law: cases and materials. Aspen Publishers.
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With regards to the standard of evidence in the legal burden for examination is away
from any logical doubts. If the prosecution raised any matter in the court, he must show
that the suspect has devoted the particular crime beyond a reasonable doubt5.
Beyond reasonable doubt means, the suit has to show the panel that the accused is guilty
so that there is no sensible reason why the accused is not guilty. Or, the jury must be sure
about the commission of offense without any doubt left.
Whereas the defendant wants to release the legal burden, the standard of evidence is on
the balance of probabilities. This is the civil standard of proof.
5 Cui, Y., 2020. AI Assistive System for Criminal Cases in Shanghai. In Artificial
Intelligence and Judicial Modernization (pp. 43-48). Springer, Singapore.
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1. (b) As explained above, the prosecution has the duty of proving that Gill and Jaako
have murdered Clark. Until proved guilty, both are considered innocent. As explained
clearly that, the prosecution has two duties, the duty of discharging evidential burden and
duty of discharging legal burden.
The evidential burden is to make the jury believe that the accused has killed Clark. The
responsibility of prosecution is to prove two things when discharging an evidential
burden. The first that the prosecution must prove Clark has been murdered and the
second is that he has been killed by Gill and Jaako6.
If the jury, in this case, believes that Gill and Jaako have killed Clark and allows the case
to go to the next step, the prosecution has won discharging the evidential. That is the end
of the first step.
The second stage is discharging the legal burden. The suit has to show legally, that the
suspect, Gill and Jaako, had actus rea and mens rea to kill Clark, beyond reasonable
doubts. To prove actus rea, the prosecution must prove that the killing was unlawful and
he has not been killed in self-defense and the act of Gill and Jaako is the legal cause of
the murder of Clark. To prove mens rea, the prosecution must show evidence that suspect
had direct or oblique intention to kill Clark.
If the prosecution makes the jury to convict Gill and Jaako, that means, the legal burden
has been discharged beyond a reasonable doubt by the prosecution.
Gill, one of the defendant claims self-defense and diminished responsibility as defenses
from convictions.
Self-defence, which is one of Common Law defenses, the accused/perpetrator bears
evidential problem only7. At the same time, the duty of the legal burden of disproving it
falls on the prosecution. If Gill or her solicitor makes the Jury to believe that there is a
possibility of self-defense, that means, the defendant has discharged the legal burden.
The trial must disprove the claims of the offender and prove that the defendant has no
right to act as a self- defence or if he was so acting, the force used was excessive beyond
a reasonable doubt.
The defense of diminished responsibility is an expressed statutory provision. Section 2 of
the Homicide Act 1957 states about this defence. Since Gill, the defendant has used this
section as a defense. Gill or her solicitor has the lawful load to demonstrate that Gill was
6 Rahim, M. A., 2020. An Analysis on Incorporating the Alternative Dispute Resolution
in Criminal Cases in Bangladesh: Challenges and Recommendations. National Journal of
Criminal Law. 2(2).
7 Ambagtsheer, F., 2020. Combating Human Trafficking for the Purpose of Organ
Removal: Lessons Learned from Prosecuting Criminal Cases. The Palgrave International
Handbook of Human Trafficking, pp.1733-1749.
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suffered from diminished responsibility8. Section 2.2 of Homicide Act 1957 states the
defense shall tolerate and to prove that Gill has suffered from diminished responsibility
and she is not liable to convict of murder. If her solicitor proves on the balance of
probabilities and the Jury believes most likely she is correct, Gill may win the case9.
Jaako has claimed defense under S.45 of the Modern Slavery Act 2015. This division
illustrates that if a person is found as a salve or victim of any trafficking then it is legally
not true. But the question is Jaako bears evidential burden or legal burden. The same was
happened in the case of R v Persida Gega (aka Anna Maione) the defendant bears the
only evidential burden. During this time, it is the duty of prosecution to tolerate he legal
load, if he want to provide it wrong.
Accordingly, if Jaako raised any issue and the Jury believes what he argues is correct, he
has won discharging evidential burden. If the defendant succeeded in discharging
evidential load, the suit tolerate a lawful burden to refute it away from a logical action10.
Overall, the trial has the evidential burden and lawful burden to prove that Gill and Jaako
have murdered Clark. Gill for self-defense, bears the only evidential burden and in the
defense of diminished responsibility, gill bears the legal burden11. Jaako bears the only
evidential burden to show the protection of slavery. Once the evidential burden
discharged and the defendants succeeded, the prosecution bears the legal burden to
disprove their defenses.
8 Westera, N. J. and et.al., 2020. Special measures in child sexual abuse cases: views of
Australian criminal justice professionals. Current Issues in Criminal Justice, pp.1-19.
9 Hernandez, K.A., Ferguson, S. and Kennedy, T.D., 2020. Juvenile Homicide Offenders:
Classifications/Typologies. In A Closer Look at Juvenile Homicide (pp. 7-19). Springer,
Cham.
10 Gallagher, S., 2020. Action and Interaction. Oxford University Press.
11 Cross, N., 2020. Criminal Law for Criminologists: Principles and Theory in Criminal
Justice. Routledge.
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2:a: As per the scenario, the prosecution found some suspicious receipts signed by Archie which
indicates his fraudulent acts. The suit has to demonstrate that the signatories of found receipts are
Archie's one. To prove, the prosecution can get the assistance of some relevant experts who can
testify that receipts are signed by Archie himself.
Generally, Jury decides on any matters which are facts in issue or relevant facts based on the
pieces of evidence of witnesses he has received. The general witnesses do not express any
opinions, beliefs, or inferences. The reason is sometimes the witnesses may require additional
knowledge and they have undue influences12. But, there are areas where Juries may not know all
the faculties and sciences, and the court is compelled to hear from others any opinion or belief or
inferences.
Thus the court has allowed hearing from outsiders on special circumstances. This can be from
experts and non-experts. In this scenario, the prosecution has sought the help of handwriting
expert, Patrick Jennings.
There are no specific statutory tests to decide where the expert evidence is admissible or not.
There are four requirements have been identified, which are ability of an expert, how freely he
makes decision, objectivity of witness and how much he depend upon the expert for an evidence.
The Prosecution has to show the four requirements are met. The competence of script
professional, Patrick Jennings is available. Even he has no official qualifications, the business
where he works has some sort of experience. The witness of an expert who has mere experience
without any paper qualification too can be accepted.
Moreover, it seems in the scenario, the expert’s opinion is objective and unbiased. Archie has to
prove if it is biased. Also, Patrick Jennings' opinion is helpful to the court, because the court has
no prior knowledge to know whether the found signatories belong to Archie, the accused, or not.
But the reliability of the opinion of the said expert is in question. Because he relies to infer his
opinion on a new cutting-edge technique of analyzing handwriting called “graphol scripting”. It
seems, this new technique is controversial and not widely accepted among other professional
experts.
According to the Law Commission’s report (2011), the opinion from experts is not completely
true and cannot be reliable. Such that there may be chances that it may be based upon the
hypothesis which did not scrutinized properly and that is why, it may failed the decision13.
Since this new technique is not widely used by other than the said ABC Company, the Jury
cannot rely on the new technique. It is not wise for the Prosecution to use this opinion to win the
case. The Jury will be in doubt to decide the case in favour of Prosecution. The standard of proof
in criminal cases should be beyond reasonable doubts. Since the dependability of said expert's
opinion is in question, the defendant can be convicted. Archie is presumed innocent until proved
guilty14.
12 Hough, R.M., 2020. Criminal Investigations Today: The Essentials. SAGE
Publications, Incorporated.
13 Rosenbaum, J., 2020. Educational and criminal justice outcomes 12 years after school
suspension. Youth & Society. 52(4). pp.515-547.
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A: In this scenario, the problem is to documentation done by Police at the Police Station
is enough as claimed by the prosecution or a fresh identification is needed as claimed by
Archie’s solicitor.
There are many identification systems to identify the suspect, such as visual identification
and Identification by fingerprints or body samples, etc15.
Visual identification is the most common form of identification. It means that when
anyone see the crime on a previous occasion and s/he has some descriptions about the
suspect. This can be very complicated, because even where an eyewitness honestly
believes that they have formed a valid identity, such evidence may be unreliable.
Lord Widgery referring to the evidence of visual identification, said: "such proofs
actually brings failure of the justice and as a result, wrong results are generated which
affect the life of right person.”
To minimize this risk, Code D of the Police and Criminal Evidence Act 1984 (PACE)
actually describe some procedures for determine the accused especially, by an eye-
witness. The case of Turnbull too has given several guidelines in this regard.
Paragraph 3.12 of Code D states that eye-witness credentials procedure must be detained
when an visual identification has determine as a suspect who identify him/her on a
previous occasion by providing some descriptions. In the scenario, three witnesses have
provided descriptions of the buyer acted in frauds that fit Archie.
As per para 3.4, if the accused’s uniqueness is identified to the police and s/he is
obtainable to be identified, video identification or identification display or assembly
credentials are may be arranged to identify the suspect.
According to the para 3.14, once the initial stage of identification procedure is done then,
the suspect are invited for a video identification, or identification parade or group
identification as para 3.4.
As per Para 3.23, if none of the said three options are practicable, the police may arrange
a confronted (which is a term that is used when suspect is directly challenged by eye-
witness) through an eye- witnesss16.
14 Setiadi, E. and Andriasari, D., 2020, March. The Correlation and Cohesion of Criminal
Act of Money Laundering (TPPU) and Criminal Act of Human Trafficking (TPPO)
Perceived from the Perspective of Criminal Law Reform in Indonesia. In 2nd Social and
Humaniora Research Symposium (SoRes 2019) (pp. 553-556). Atlantis Press.
15 Gal, T. and Dancig-Rosenberg, H., 2020. Characterizing multi-door criminal justice: A
comparative analysis of three criminal justice mechanisms. New Criminal Law
Review. 23(1). pp.139-166.
16 Tarasov, A.V. and Gaevoy, A.I., 2020, January. The Areas of Concern in Using Digital
Technologies for Documenting Criminal Acts and Collecting Evidence at the Prejudicial
Stage of Criminal Proceedings. In 5th International Conference on Economics,
Management, Law and Education (EMLE 2019) (pp. 900-904). Atlantis Press.
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The scenario lustrates that the police officer went to the confrontation method to identify
the suspect before applying other methods. This is a clear violation of Police to the Code
C. Failure to complying the Code C may lead to the quashing of convictions.
Since the suspect Archie is known and available, the police officer must have an
credentials display or video identification or a group deification. Accordingly, the duty of
the Police to have a fresh identification procedure as requested by Archies' solicitor. The
confrontation method which was done by police earlier is not accepted, because, this
should be done if others said three procedures are not practical as per para 3.23 of Code
D17.
Guidance for each type of identification is explained in the Annex A-C of the Code.
The question is whether the said text message is enough for Jury to convict Archie for his
fraudulent act. The text message which is relied on by the prosecution is can be hearsay
evidence. Criminal Justice Act 2003, describes rumor as any declaration which not
consider as an oral evidence which is adduced in the court to prove as sign of some
matter stated.
Accordingly, a declaration to be hearsay, it should be stated out of the court and the aim
of this is to adduce evidence that the contents of the statement are true. If the aim of the
declaration is not to offer proof but to infer any other fact then the statement is not
hearsay.
Generally, word of mouth proof is not allowable in the court. The main reason is, it
cannot be cross-examined. There are a few exceptions where the hearsay evidence is
accepted. As per section 114(1) of Criminal Justice Act 2003, the hearsay proof is
acceptable only in instances such as if statutory provisions make it allowable for both
parties in order to agree to be allow in a court so that it satisfy the situation which is also
in the interest of justice. Then it is allowable or acceptable.
The said text message is, like other forms of messages such as email and letter, not oral
evidence. It is a statement made by other than the witness, out of the court. Accordingly,
this statement may or may not be hearsay evidence.
The prosecution relies on this message to prove that Archie was in Whitmore Reans to
buy an Audi R8 car. The purpose of the said massage is to adduce that Archie was in
Whitmore Reans to buy an Audi R8 car18. The relevant fact or matter is the prosecution
wants to prove that Archie was in Whitmore Reans to buy an Audi R8 car. The statement
17 Prasetya, M.R., Azisa, N. and Ilyas, A., Obstacles for Law Enforcement Officers
Against the Suspect In the Criminal Justice Examination Process.
18 Vieira, R. and Quaresma, P., 2020. Aligning IATE Criminal Terminology to SUMO.
In Computational Processing of the Portuguese Language: 14th International
Conference, PROPOR 2020, Evora, Portugal, March 2-4, 2020, Proceedings (Vol.
12037, p. 98). Springer Nature.
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in the communication is “CU WRns tmrw Boss R8”. And the purpose of the maker of
this communication, that is Archie, is to make believe that he will be in Whitmore Reans,
then this text message is inadmissible as said in the case of Regina v Twist and Others.
In another word, the purpose of the prosecution by producing this text message is to
prove that Archie was in Whitmore Reans. That is exactly what the text message
Contains. Hence the said text message is inadmissible. But if the purpose is the
prosecution is by producing this text message is to prove something else other than this, it
can be admissible.
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