Burden and Standard of Proof
Burden and standard of proof
This domain tests who must prove what, to what level, and what happens when a burden is not discharged. Criminal and civil proceedings use different starting points, but both distinguish the legal burden from the evidential burden.
Core rules
- Legal burden. The party bearing the legal burden must prove the issue to the required standard. In a criminal trial the prosecution bears the legal burden on all elements and must disprove defences such as self-defence once raised.
- Evidential burden. A party must adduce enough evidence to make an issue live. The judge decides whether the burden is satisfied; if not, the issue is withdrawn.
- Criminal standard. The prosecution must prove guilt beyond reasonable doubt. If the accused bears a legal burden, for example on insanity, the standard is the balance of probabilities.
- Civil standard. The balance of probabilities applies; the more improbable the allegation, the more cogent the evidence needed, but the standard does not change.
- Presumptions and reverse burdens. The presumption of innocence is foundational. Statutory reverse burdens may be compatible where they are proportionate and confined.
Worked example
D is charged with assault and raises self-defence. D bears only an evidential burden: he must point to some evidence of self-defence. Once that is done, the prosecution must disprove self-defence beyond reasonable doubt. If D merely asserts self-defence without any supporting evidence, the judge may withdraw it. If D raises insanity, he bears the legal burden and must prove it on the balance of probabilities.
Traps
The commonest error is reversing the burdens. Self-defence does not require the accused to prove it. Do not say the civil standard is '50% plus one'; it is a flexible balance. Do not confuse the evidential test with the legal test, and remember that the standard for a defence bearing a legal burden is usually the balance of probabilities.