Criminal law question on evidence.

UrbanFox

Generally, the prosecution carries the burden of proof. The standard of proof is that of establishing the case beyond reasonable doubt.

Q1. If the accused is offering specific exculpatory evidence I take it that they must offer supporting evidence. What is the standard of proof for such evidence being put forward by the defence ? Is it proof beyond reasonable doubt or proof on the balance of probabilities ?

Q2. I understand that the defendant is not required to give evidence. Indeed, I understand that the defence is not required to offer any evidence at all. In either of these scenarios is the jury entitled to draw an adverse inference from the absence of such evidence from the defence ?

Q3. If the jury is not entitled to draw an adverse inference are they given a specific instruction on that point ?

Peregrinus

The burden of proof is on the prosecution, and the prosecution has to prove its case beyond reasonable doubt.

If a defence is raised, the burden of proof is on the defendant, but the defendant only has to prove it on the balance of probabilities.

For example, under Road Traffic Act 1961 s. 54(2), if a vehicle is driven in a public place while it is affected by a defect that presents a danger to the public, and if the owner knew about the defect or could have discovered it by the exercise of ordinary care, the owner commits an offence. So if there is a charge under s. 54(2) the State must prove, beyond reasonable doubt, that the vehicle was driven in a public place; that it was defective at the time; that the defect presented a danger to the public; that the defendant is the owner; that the defendant knew about or could have discovered the defect; etc. If the State fails to prove any of these things, the defendant will be acquitted.

But even if the State proves all those things, under s. 54(3) it's a defence for the owner to show that the vehicle was being driven by someone other than the owner, and that the driver was not authorised to drive the vehicle. If the defendant wants to rely on this defence, the burden of proof is on him. But he only needs to prove these things on the balance of probabilities.

The jury cannot draw an adverse inference from the fact that the defendant does not give evidence, and (if the defendant does not give evidence) they jury will be instructed to that effect by the judge.

They can draw inferences if other people who might be expected to testify do not. For example, if the defendant testifies that he couldn't have committed the crime he is charged with because he was with his mate Joe in Lanzarote at the time, but Joe doesn't give evidence, that may detract from the persuasive power of the defendant's evidence. This cuts both ways; the absence of an expected prosecution witness might affect the strength of the prosecution case, if not explained to the satisfaction of the jury.

Claw Hammer

Unless there is a specific onus on the defendant such as in insanity, the defendant only has to raise a reasonable doubt. He doesn't have to prove his contention is true on the balance of probabilities. If the defendant raises a reasonable doubt the prosecution must negative it. For example in a case of possession of child pornography on a computer the defendant can lead evidence to show that other people had access to his computer. This raises a doubt but doesn't prove than anyone else actually accessed the computer and put pornography on it.

It would be for the prosecution to negative the suggestion that someone else could have done it.

Peregrinus

There's a distinction between the defendant challenging the prosecution's case and the defendant advancing an affirmative defence. In the former case, he just has to raise a reasonable doubt. (In fact, strictly speaking, he doesn't even have to do that; he can just argue that the evidence led by the prosecution doesn't prove the necessary facts beyond reasonable doubt.) In the latter case, the burden of proof is on him and he has to prove the defence on the balance of probabilities.

In the example I gave earlier, a charge under RTA 1961 s. 54(2) if the defendant raises a reasonable doubt as to, say, whether the defect in the care presented a danger to the public, he'll be acquitted. But if the defendant wants to rely on the s. 54(3) defence, that the car was being driven without his authority, then he needs to prove that on the balance of probabilities.