Many people will be familiar with the fact that in civil and criminal cases there are different standards of proof. They might also be aware that in criminal cases there is a presumption of innocence, so that the burden of proof falls on the prosecution.
So the basic standard of proof / burden of proof matrix looks like this:
|Standard of proof||Burden of proof|
|Criminal cases||Guilt beyond a reasonable doubt||On the prosecution|
|Civil cases||On the balance of probabilities, the defendant was more likely liable than not liable||On the claimant|
There are, however, some more subtle aspects to burden of proof issues, and this article discusses a few of them.
The evidential burden of proof
In general terms, the evidential burden of proof might be described as the burden of proving to the court that there is a case for the defendant to answer at trial. For example, where a civil claimant has only thin circumstantial evidence as to the defendant’s liability, a court might grant the defendant’s application to have the case dismissed prior to trial. In such circumstances, the claimant has failed to meet the evidential burden of proof.
Sometimes, however, the evidential burden of proof can be shifted — even in criminal cases. For instance, in some types of criminal cases the defendant may have the evidential burden of raising a defence.
Where the defendant has the evidential burden of proof, the legal burden of proving the case “beyond a reasonable doubt” remains with the prosecution. For example, if a defendant charged with grievous bodily harm claims he was acting in self-defence, he has the burden of demonstrating to the court that there is evidence to support his defence. Once the court accepts that he should be allowed to raise the defence, the prosecution has to prove beyond a reasonable doubt that the defendant was not acting in self-defence.
So although the prosecution does not have to anticipate all possible defences and prove beyond a reasonable doubt that each such defence did not exist, it does have to disprove defences that the defendant has raised and that meet the evidential burden of proof.
Shifting the legal burden of proof in criminal cases
For some types of defences to criminal charges, the legal (and not just evidential) burden of proving the defence shifts to the defendant. The traditional example of this is the defence of insanity. In effect, a defendant who wants to be acquitted on the grounds of insanity needs to prove that he is insane. There are other examples of defences where, by statute, the legal burden of proof shifts to the defendant, either because the defendant is required to prove elements of his defence or to disprove an element of the crime with which he has been charged.
In a number of recent cases, the UK courts have held that where certain criminal statutes are interpreted as imposing a legal burden of proof on the defendant (in other words requiring him to prove a defence) rather than an evidential burden (the burden of introducing evidence in support of a defence), that interpretation would not be consistent with the presumption of innocence guaranteed by the European Convention on Human Rights. So in those cases, the courts have required that the statutes in question be read as imposing only the lesser, evidential burden of proof on the defendant.
Presumptions and how they affect the burden of proof
The legal system is full of presumptions, both as to questions of law and questions of fact. Essentially, they are means of allocating the burden of proof on particular issues.
In the context of a civil claim, a presumption might work like this: A sues B for defamation (a civil action for damages). B defends on the ground that the allegedly defamatory statement, which reflects badly on A’s reputation, is true. In this case, the law imposes a presumption that A has a good reputation. This means that in proving his defence, the burden is on B to rebut that presumption — by showing that in fact A’s reputation is not so good and that the alleged libel is in fact a true statement.
Presumptions can also come into play in certain circumstances where the true facts might be difficult or even impossible to prove. For instance, where two married people die simultaneously — and, say, a particular beneficiary’s interest in their estates depends on which of them died first — the law imposes a presumption that the older person died first. That may or may not have actually been the case, but if, for instance, they were killed in a car accident and there is no forensic evidence available to prove who died first, then the presumption will stand.
The burden of proof in civil matters
In civil matters, the general rule is that the burden of proof falls on the party advancing the matter in question. For example, a claimant who asserts that the defendant was negligent will have the burden of proving that, on the balance of probabilities, the defendant had a duty of care to the claimant, that the defendant breached the duty of care and that the breach caused harm to the claimant. If the defendant asserts that the claimant’s own negligence had contributed to the harm, then the defendant will have the burden of proving the claimant’s contributory negligence.
Since there are frequently counterclaims in civil cases, and apportionment of liability rather than just an all-or-nothing outcome, each side will usually bear the burden of proof on some matters.
As indicated above, presumptions can also affect the burden of proof in civil cases. Sometimes a presumption will give one party the benefit of the doubt — thus giving the other party the burden of disproving, or rebutting the presumption.
Strict liability and the burden of proof
In some types of cases, the law imposes strict liability on the defending party if the claimant (or prosecution) is able to prove a particular set of facts. This often arises in quasi-criminal cases involving “administrative” offences, such as breaches of statutory duty under health and safety legislation.
Strict liability removes the burden of proving liability — if, for example, the health and safety authorities can prove that a ladder was not in the condition required under work at height regulations, then the employer who provided the ladder will have strict liability under the applicable regulations. Such matters are often germane to both criminal (or quasi-criminal) and civil proceedings, since a civil claimant might rely on a breach of statutory duty to advance a civil claim.
Getting help with civil or criminal litigation
As the discussion in this article indicates, issues relating to the burden of proof can be complex. A solicitor who regularly handles criminal or civil litigation will be familiar with these issues and will be able to advise you on how they might affect your case.