law of evidence question... burden of proof

pobnam

hi i was wondering if anyone could answer a legal q for me.. in a criminal trial can the legal burden of proof ever switch to the defence.. took evidence on as an extra subject now with the exam in 2 weeks im seriously regretting it

NoQuarter

The burden of proof is split into a "legal burden" and an "evidential burden". The legal burden can only switch to the dfence in certain circumstances but the onus of proving innocence can NEVER switch to the defence.

Examples that spring to mind are if explosives are found on a person, they are presumed to be for an illegal purpose, unless proved otherwise. Likewise, to prove the defence of insanity, the legal burden switches to the defence by statute.

The other examples are when duress or provocation are raised as a defence, it is not for the defence to prove the defence but instead, it is for the prosecution to disprove the defences raised. BUT, in order to raise such a defence, an evidential burder or "threshhold" must be met by the defence first.



It has stood up to constitutional challenge already I believe.

seb65

pobnam wrote: »

hi i was wondering if anyone could answer a legal q for me.. in a criminal trial can the legal burden of proof ever switch to the defence.. took evidence on as an extra subject now with the exam in 2 weeks im seriously regretting it

That's a confusing area - if you're planning on picking topics, I'd consider going with something else and leaving that one.

Farcear

Make sure you do not confuse the LEGAL BURDEN and the EVIDENTIAL BURDEN.

The legal burden means the burden to prove every element of the offence beyond reasonable doubt and is always on the prosecution --- i.e. a defendant is never required to prove his innocence. There is *lots* of caselaw on this point -- off-hand I think the "Golden Thread" formulation is Woolmington v DPP?

The evidential burden means the burden to make a point a "live issue" on the balance of probabilities and can be shifted to the defence, i.e. to raise the defence of provocation the defendant must initially prove, or at least put forward some evidence to shift the evidential burden back to the prosecution, that he was provoked.

NoQuarter

seb65 wrote: »

That's a confusing area - if you're planning on picking topics, I'd consider going with something else and leaving that one.

If the OP has taken it on as an extra topic with the King's Inns in mind, he will have to understand it! It's not too bad once you get your teeth into it.

seb65

NoQuarter wrote: »

If the OP has taken it on as an extra topic with the King's Inns in mind, he will have to understand it! It's not too bad once you get your teeth into it.

Agreed, all aspects of evidence are important in practice. However, if someone is only now - during summer exams - concerned with the topic, it's best to leave it if OP is able to do so. I'd imagine the focus is on passing the course at this moment. IMO, even judges get this area wrong.

pobnam

hi thanks for the replies.. i was going grand i understand the difference between the leagal and evidential burden until i came across this question

Write an essay on the burden and standard of proof in criminal
proceedings, including in your answer an account of the distinction
between the legal burden and the evidential burden, and of the
circumstances in which a legal burden may be imposed on the defence.

this was in a previous exam most of the question is fine just no idea what i would write on the last bit..

as was said i could avoid this topic but it is an extra subject and im going to have to know this stuff anyway so not really too fussed about getting a first or anything

pobnam

seb65 wrote: »

IMO, even judges get this area wrong.

this doesnt fill me with confidence

Farcear

"and of the circumstances in which a legal burden may be imposed on the defence."

Yes, that's basically a trick question. I would write a few paragraphs along the lines of...

Burden cannot be shifted on defence;
Viscount Sankey, "Golden thread" speech in Woolmington v DPP;
Irish case law showing where it has been found unconstitutional and/or showing that only an evidential burden shifts - Rock v Ireland, etc.

NoQuarter

pobnam wrote: »

hi thanks for the replies.. i was going grand i understand the difference between the leagal and evidential burden until i came across this question

Write an essay on the burden and standard of proof in criminal
proceedings, including in your answer an account of the distinction
between the legal burden and the evidential burden, and of the
circumstances in which a legal burden may be imposed on the defence.

this was in a previous exam most of the question is fine just no idea what i would write on the last bit..

as was said i could avoid this topic but it is an extra subject and im going to have to know this stuff anyway so not really too fussed about getting a first or anything

IMO it's either a typo or they want you to exaggerate that the legal burden never switches. terrible question either way.

pobnam

NoQuarter wrote: »

IMO it's either a typo or they want you to exaggerate that the legal burden never switches. terrible question either way.

ya thats what threw me... id say ill just leave it off prepare an answer on the evidential burden and hope it was a typo...:(:(:(

Milk & Honey

seb65 wrote: »

Agreed, all aspects of evidence are important in practice. However, if someone is only now - during summer exams - concerned with the topic, it's best to leave it if OP is able to do so. I'd imagine the focus is on passing the course at this moment. IMO, even judges get this area wrong.

This smacks of question spotting, which is the very thing examiners are looking for. It is a very basic question going to the root of criminal practise and examiners are not impressed when a candidate gives a reasonable answer to a topic in one area and doesn't know something basic. It is a very simple concept with only a few important vases in the area.

pobnam

Milk & Honey wrote: »

This smacks of question spotting, which is the very thing examiners are looking for. It is a very basic question going to the root of criminal practise and examiners are not impressed when a candidate gives a reasonable answer to a topic in one area and doesn't know something basic. It is a very simple concept with only a few important vases in the area.

but surely if your going to choose to do this in the exam your going to know one of the most basic aspects of the topic???

Milk & Honey

pobnam wrote: »

but surely if your going to choose to do this in the exam your going to know one of the most basic aspects of the topic???

Questions in the exam are often comprised of a mix of topics. Ignorance of the basics is fatal.

pobnam

Milk & Honey wrote: »

Questions in the exam are often comprised of a mix of topics. Ignorance of the basics is fatal.

agreed but since they ask it in an exam youd expect there to be some exceptions., youd hardly believe that they are just looking for something as simple as it never happens... maybe a few cases where convictions have been quashed in order to back up your argument... it just seems either like either a sly way to get at those who just studied this topic and didnt read into it very deeply or as was said a mistake

seb65

Milk & Honey wrote: »

This smacks of question spotting, which is the very thing examiners are looking for. It is a very basic question going to the root of criminal practise and examiners are not impressed when a candidate gives a reasonable answer to a topic in one area and doesn't know something basic. It is a very simple concept with only a few important vases in the area.

Don't be so dramatic. The OP is asking about the topic as a whole - as is the essay question he lists. How the BOP would factor into a "multiple issue" question would be, in fact, a very basic point and probably one sentence. Such as, the defence can raise a defence of insanity, however Common Law has found the burden of proving this fact in issue rests on the defence.

BOP gets more involved when you have to understand its nuances and ensure you always have the difference between evidential burden of proof and legal burden of proof clear in your mind.

And as for it not being a difficult topic, NoQuarter states unequivocally that at no time does the legal burden of proof transfer to the defendant. This statement appears to be wrong, as at times a defendant can be charged with proving a fact in issue when it concerns a defence he raises. This means Farcear has also gotten it wrong. Proving a fact in issue is not the same as proving you are innocent. Proving a fact in issue is facing a legal burden of proof.

Milk & Honey

pobnam wrote: »

agreed but since they ask it in an exam youd expect there to be some exceptions., youd hardly believe that they are just looking for something as simple as it never happens... maybe a few cases where convictions have been quashed in order to back up your argument... it just seems either like either a sly way to get at those who just studied this topic and didnt read into it very deeply or as was said a mistake

There are statutes which put an onus of proof on the defendant. These have been the subject of judicial findings as to what exactly they mean. There is also the onus of proving insanity on the accused. Examiners are usually looking for some comment on those cases thus showing that the candidate has a grasp of the concept of legal and evidential burdens. If there are problem questions this issue tends to be in there somewhere as well.

seb65

Milk & Honey wrote: »

There are statutes which put an onus of proof on the defendant. These have been the subject of judicial findings as to what exactly they mean. There is also the onus of proving insanity on the accused. Examiners are usually looking for some comment on those cases thus showing that the candidate has a grasp of the concept of legal and evidential burdens. If there are problem questions this issue tends to be in there somewhere as well.

Exactly, it may be somewhere in there, but not ever asked as a fundamental issue in a multi-issue question. May speak to the overall knowledge of a student, but hardly smacks of "question spotting".

pobnam

i am using two books and my lecture notes to study for this exam and both books and my notes just a a small note on insanity and mention no other ways the it can shift... i think a short note on that would be sufficient thats all im doing on the off chance it comes up again... thanks for all the replies anyway

NoQuarter

seb65 wrote: »

And as for it not being a difficult topic, NoQuarter states unequivocally that at no time does the legal burden of proof transfer to the defendant. This statement appears to be wrong, as at times a defendant can be charged with proving a fact in issue when it concerns a defence he raises. This means Farcear has also gotten it wrong. Proving a fact in issue is not the same as proving you are innocent. Proving a fact in issue is facing a legal burden of proof.

I had to pull out my evidence manual but you are correct so I have edited my original post to be accurate. Damn you, BOP, you win again!!

NoQuarter

pobnam wrote: »

i am using two books and my lecture notes to study for this exam and both books and my notes just a a small note on insanity and mention no other ways the it can shift... i think a short note on that would be sufficient thats all im doing on the off chance it comes up again... thanks for all the replies anyway

s.24 of the Offences Against the State Act, 1939 too. Presuming membership of an unlawful organisation if found with certain articles. Ive updated my first post with more too.

Murnaghan J

Look at: Dennis, "Reverse Onuses and the Presumption: In Search of Principle" [2005] Crim LR 901

See also: Sheldrake -v- DPP [2005] 1 AC 264 and Minister for Industry and Commerce -v- Steele [1952] IR 304

In the latter case Murnaghan J stated:

Murnaghan J wrote:

In Rex v Kakèlo (1) the Court of Criminal Appeal in England (Sankey, Salter and Swift JJ) held that on an indictment under the Aliens Order, 1920, the onus was on the accused to prove that he was not an “alien.” This onus was cast upon the accused by positive enactment, in the opinion of the Court, but the decision was also supported on another ground. Salter J, at p 795, said:—“Further, we think that the burden of proof may in the course of a case be shifted from one side to the other', and in considering the amount of evidence necessary to shift the burden of proof the Court has regard to the opportunities of knowledge with respect to the fact to be proved which may be possessed by the parties respectively: see Stephen's Digest of the Laws of Evidence, 9th ed, art 96. In this case there was evidence given by the prosecution sufficient to shift the onus of proof and to make it necessary for the prisoner to prove that he was not an alien.” This opinion of the Court of Criminal Appeal in England was to the effect that, upon an indictment, the onus of proving a fact going to the root of the indictment had been cast upon the prisoner, and that it had been so cast by reason of the prisoner's opportunities of knowledge.

This is a good example of where the evidential and legal burden may shift to the Defendant where a fact which may prove his innocence is peculiarly within his own knowledge.

Bear in mind the judgment of Davitt P in McGowan -v- Carville [1960] IR 330 about how the Court will apply this exception.

seb65

NoQuarter wrote: »

I had to pull out my evidence manual but you are correct so I have edited my original post to be accurate. Damn you, BOP, you win again!!

Yes, that damn BOP has caused me much grief in the past! haha

Hence why I kept going over it when doing evidence, it was/is a difficult concept for me.

ps - maybe I was just a quicker draw on the evidence manual though

Milk & Honey

Only an evidential burden shifts to the accused under the 1938 statute. the legal burden always remains with the prosecution.
[1993] 102
1 I.R.
Donal O'Leary , Plaintiff v. The Attorney General, Defendant
Costello J.
6. That having regard to the specific provisions of s. 24 of the Act of 1939, the section did no more than shift an evidential burden of proof upon drawing certain inferences, the weight of which depended very much upon the type of facts establishing them and, similarly, that the reception of such evidence did not oblige the court of trial to convict.

NoQuarter

Milk & Honey wrote: »

Only an evidential burden shifts to the accused under the 1938 statute. the legal burden always remains with the prosecution.
[1993] 102
1 I.R.
Donal O'Leary , Plaintiff v. The Attorney General, Defendant
Costello J.
6. That having regard to the specific provisions of s. 24 of the Act of 1939, the section did no more than shift an evidential burden of proof upon drawing certain inferences, the weight of which depended very much upon the type of facts establishing them and, similarly, that the reception of such evidence did not oblige the court of trial to convict.

Yeah the pointing to the section was only to show that it should be used in the OP's question as per the HC/SC decision in O'Leary.

Milk & Honey

seb65 wrote: »

And as for it not being a difficult topic, NoQuarter states unequivocally that at no time does the legal burden of proof transfer to the defendant. This statement appears to be wrong, as at times a defendant can be charged with proving a fact in issue when it concerns a defence he raises. This means Farcear has also gotten it wrong. Proving a fact in issue is not the same as proving you are innocent. Proving a fact in issue is facing a legal burden of proof.

No Quarter is not wrong. The proof a defendant faces is an evidential burden. He does not have to prove it as a fact either on the balance or probabilities or beyond reasonable doubt.

seb65

Milk & Honey wrote: »

No Quarter is not wrong. The proof a defendant faces is an evidential burden. He does not have to prove it as a fact either on the balance or probabilities or beyond reasonable doubt.

Wrong.

Besides the fact the NoQuarter has already agreed the statement was incorrect, there is a difference between a legal burden and evidential burden. The accused can, for certain facts in issue, face both.

In The People (DPP) v Smyth Snr. & Anor. [2010] Charleton J, for the court of criminal appeal states:

At criminal trial, the burden of proof is borne by the prosecution of every issue; except on those issues on which the burden of proof is cast on the accused by statute. This burden is not to be confused the burden of adducing evidence.

From Hill v Baxter, where the accused wishes to utilize a defense, particularly during closing arguments, they must adduce some evidence of it during trial. This proffering is not the same as facing a legal burden of proof.

However, for certain defences, the Common Law has established that the defendant is responsible for proving - not merely offering evidence of - them.

When these defences come into play, the defendant must prove them on the balance of probabilities.

An example can be shown from contrasting two well-known American cases - in the State v Andrea Yates - the defendant argued she was insane when she killed her children. The burden of proving insanity was on the defense.

In the State v Casey Anthony, the defence, in its opening argument, stated that a mitigating factor for the defendant's actions was that she had been abused by her father - this appeared to be leading towards an insanity defence. However, they did not adduce any evidence of this fact during the trial and subsequently, were prevented from raising it in their closing arguments. In this instance, they did not have to prove insanity, merely offer a single piece of evidence that it was a factor in order to bring it into closing.