10 Burden and Standard of Proof

4. The burden and standard of proof

Murphy on Evidence ◽

10.1093/he/9780198788737.003.0004 ◽

2017 ◽

Author(s):

Richard Glover

Keyword(s):

Burden Of Proof ◽

Criminal Cases ◽

Standard Of Proof ◽

Civil Cases

This first part of the chapter discusses the concept of burden of proof, covering the legal or persuasive burden of proof; the evidential burden; the effect of presumptions on the burden of proof; the legal burden of proof in civil cases; the evidential burden in civil cases; the burden of proof in criminal cases; defence burdens of proof before Lambert; defence burdens of proof after Lambert; and the burden of proof of secondary facts. The second part of the chapter discusses the standard of proof, covering standard of proof required of prosecution in criminal cases; standard of proof required of defence; standard of proof of secondary facts; the standard of proof in civil cases; and the standard of proof in matrimonial and family cases.

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Proof of Causation in Tort Cases

Studia Iuridica ◽

10.5604/01.3001.0013.9616 ◽

2020 ◽

Vol 82 ◽

pp. 149-160

Author(s):

Bohdan Karnaukh

Keyword(s):

Common Law ◽

Civil Law ◽

Burden Of Proof ◽

Reasonable Doubt ◽

Criminal Cases ◽

Ways Of Coping ◽

Law System ◽

Standard Of Proof ◽

Civil Cases ◽

Civil Law System

The article addresses the problem of uncertainty over causation in tort cases. It reveals the interconnection between burden of proof and standard of proof. The author provides a comparative overview of approaches to standard of proof in common law and civil law systems. It is argued that while in common law there are two different standards viz: beyond-reasonable-doubt-standard for criminal cases and balanceof-probabilities standard for civil cases in civil law system there is only one standard applicable both to criminal and civil cases. With comparative analysis in the background the article also reveals the peculiarities of Ukrainian law in the respect of the issue raised. The problem is approached in a pragmatic manner: using a hypothetical case the author models practical outcomes entailed by each of the approaches being applied to the case. Eventually the conclusion is made that there are four ways of coping with uncertainty over causation: (1) to reverse the burden of proof; (2) to calibrate the standard of proof for certain cases; (3) to recognize the very creation of the abnormal risk as a compensable damage; and (4) to multiply damage plaintiff sustained by the probability factor indicating the likelihood of the damage being actually caused by the defendant.

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2. Burden and standard of proof: Presumptions

Concentrate Questions and Answers Evidence ◽

10.1093/he/9780198819905.003.0002 ◽

2018 ◽

Author(s):

Maureen Spencer ◽

John Spencer

Keyword(s):

Burden Of Proof ◽

Presumption Of Innocence ◽

Criminal Trials ◽

Standard Of Proof ◽

Statutory Provision ◽

Questions And Answers ◽

Flow Charts ◽

The Law ◽

The Difference ◽

Law Of Evidence

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter discusses the allocation of the burden of proof in civil and criminal trials, depending on who should bear the risk. In criminal trials the ‘presumption of innocence’ means that the burden is on the prosecution, unless reversed by express or implied statutory provision. The law of evidence safeguards what in some jurisdictions is a civil right backed by the constitution. It is important to understand the difference between the legal and evidential burden and the occasions where they are separately allocated. Tricky areas are where there is a divorce of the legal and evidential burden, primarily in situations where the prosecution cannot expect to put up evidence to anticipate every specific defence the accused may present.

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2. Burden and standard of proof: presumptions

10.1093/he/9780198715795.003.0002 ◽

2016 ◽

Author(s):

Maureen Spencer ◽

John Spencer

Keyword(s):

Burden Of Proof ◽

Presumption Of Innocence ◽

Criminal Trials ◽

Standard Of Proof ◽

Statutory Provision ◽

Questions And Answers ◽

Flow Charts ◽

The Law ◽

The Difference ◽

Law Of Evidence

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flow charts. This chapter discusses the allocation of the burden of proof in civil and criminal trials, depending on who should bear the risk. In criminal trials the ‘presumption of innocence’ means that the burden is on the prosecution, unless reversed by express or implied statutory provision. The law of evidence safeguards what in some jurisdictions is a civil right backed by the constitution. It is important to understand the difference between the legal and evidential burden and the occasions where they are separately allocated. Tricky areas are where there is a divorce of the legal and evidential burden, primarily in situations where the prosecution cannot expect to put up evidence to anticipate every specific defence the accused may present.

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PEMAKAIAN PRIMA FACIE DI AKHIR KES PENDAKWAAN JENAYAH SYARIAH DI MALAYSIA: ISU DAN PENYELESAIAN

Journal of Nusantara Studies (JONUS) ◽

10.24200/jonus.vol5iss1pp395-413 ◽

2020 ◽

Vol 5 (1) ◽

pp. 395-413

Author(s):

Suhaizad Saifuddin ◽

Azam Mohd Shariff ◽

Muhamad Helmi Md. Said

Keyword(s):

Content Analysis ◽

Criminal Justice ◽

Burden Of Proof ◽

Prima Facie ◽

Criminal Prosecution ◽

Criminal Cases ◽

Legal Requirements ◽

Prima Facie Case ◽

Standard Of Proof ◽

Two Stages

Latar belakang dan tujuan: Terdapat dua peringkat perbicaraan kes jenayah syariah yang berkaitan dengan pemakaian darjah pembuktian iaitu pada akhir kes pendakwaan dan kes pembelaan. Peruntukan undang-undang yang tidak jelas berkaitan darjah pembuktian di akhir kes pendakwaan telah menyebabkan pemakaian darjah pembuktian yang tidak seragam. Kajian ini bertujuan untuk menganalisis pemakaian prima facie sebagai darjah pembuktian di akhir kes pendakwaan jenayah syariah. Selain itu, kajian ini juga cuba untuk mengenalpasti faktor-faktor yang mendorong kepada pemakaian prima facie bagi kes jenayah syariah di negara ini. Metodologi: Data diperolehi melalui bahan-bahan dokumentasi seperti statut perundangan, kes-kes yang dilaporkan dan yang tidak dilaporkan. Di samping itu, kajian ini telah menemubual enam orang pengamal undang-undang syariah yang berpengalaman luas yang terdiri daripada empat orang hakim syarie, seorang pendakwa syarie dan seorang peguam syarie bagi mendapatkan penjelasan dan pandangan. Data dan maklumat yang diperolehi dianalisis menerusi instrumen analisis kandungan secara kritis dan kritikal. Dapatan Kajian: Dapatan penulisan mendapati pemakaian prima facie bagi kes jenayah syariah adalah tidak sesuai dan kurang tepat. Ini kerana frasa prima facie tidak diperuntukkan dalam undang-undang dan hukum syarak. Sumbangan: Hasil kajian ini penting dalam memberikan penjelasan kepada pengamal undang-undang syariah supaya darjah pembuktian yang sesuai dengan prinsip syariah dapat di aplikasi pada akhir peringkat pendakwaan kes jenayah syariah bagi menggantikan pemakaian prima facie selaras dengan kehendak undang-undang dan roh prinsip jenayah syariah. Kata kunci: Beban pembuktian, darjah pembuktian, isu, jenayah syariah, prima facie. ABSTRACT Background and Purpose: There are two stages in the trial of shariah criminal cases related to the application of the degree of evidence, namely at the end of the prosecution case and the defense case. There is an ambiguity in the provision of laws with regards to the burden of proof at the end of prosecution case. This paper aims to analyze the prima facie application of the degree of proof at the end of the prosecution case in the shariah criminal justice. Besides, this paper aims to identify the factors of the prima facie application in the shariah criminal cases in the country. Methodology: Data were obtained through documentation materials such as statutes, reported cases and unreported cases. Six experienced shariah law practitioners including four shariah judges, a shariah prosecutor and a shariah lawyer were interviewed to obtain their view and clarifications. The data were analyzed using a critical and analytical content analysis approach. Findings: The study found that prima facie used in the shariah criminal cases was inappropriate and inaccurate as the meaning of prima facie has never been clearly clarified by shariah law. Contributions: The findings of this study are useful in guiding shariah law practitioners so that a degree of proof that is in accordance with shariah principles can be applied at the end of the criminal prosecution stage to replace prima facie application in accordance with the legal requirements and the spirit of the principles of shariah criminal justice. Keywords: Burden of proof, issues, prima facie, shariah crime, standard of proof. Cite as: Saifuddin, S., Mohd Shariff, A. A., & Md. Said, M. H. (2020). Pemakaian prima facie di akhir kes pendakwaan jenayah syariah di Malaysia: Isu dan penyelesaian [Application of prima facie case at the end of prosecution case in the syariah criminal justice: Issues and solutions]. Journal of Nusantara Studies, 5(1), 395-413. http://dx.doi.org/10.24200/jonus.vol5iss1pp395-413

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2. Presumptions and the burden of proof

Evidence ◽

10.1093/he/9780198832461.003.0002 ◽

2019 ◽

pp. 62-105

Author(s):

Roderick Munday

Keyword(s):

Human Rights ◽

Burden Of Proof ◽

European Convention ◽

Criminal Case ◽

Criminal Cases ◽

Standard Of Proof ◽

The Core ◽

The Subject

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the following: criminal and civil burdens of proof; the ‘legal burden of proof’ and the ‘evidential burden’; the ‘tactical burden’; the prosecution’s legal burden of proof in criminal cases; when the defendant in a criminal case bears the legal burden of proof; the standard of proof; the evidential burden; the judge’s ‘invisible burden’; the burden of proof when establishing the admissibility of evidence; presumptions and the incidence of the burden of proof; and reversal of the burden of proof and the European Convention on Human Rights.

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On understanding of proof in English and American law

Bulletin of Kharkiv National University of Internal Affairs ◽

10.32631/v.2018.2.01 ◽

2018 ◽

Vol 81 (2) ◽

pp. 13-27

Author(s):

O. V. Tiaglo

Keyword(s):

Burden Of Proof ◽

Convincing Evidence ◽

Three Dimensions ◽

Reasonable Doubt ◽

Criminal Cases ◽

Standard Of Proof ◽

Logical Connection ◽

American Law ◽

History Of ◽

Legal Proof

This research paper is devoted to explication of understanding of proof in English and American law by means of study of its evolution and current condition. To get this aim the comparative analysis of few similar fragments from the Black’s law dictionary is completed. It is concluded, firstly, that concept of judicial proof grasps both process of presentation of legal evidence and its effects – conclusion, supported by system of the evidence, and belief to this conclusion, induced in minds of relevant persons. Secondly, cluster of (concepts and relevant) terms, by which proof in English and American law is (realized and) expressed, includes, among others, «truth», «proof» and «evidence», «to prove» and «to evidence», «burden of proof», «degree of proof», «standard of proof», «standard of proof beyond reasonable doubt», «standard of proof by preponderance of the evidence», «standard of proof by clear and convincing evidence», «legality», «admissibility», as well as «belief», «conviction», «to convince» and «to persuade». Thirdly, this cluster had been shaped and develops further – in addition to natural space and time – in at least three dimensions: logical, legal, and rhetorical. If during the late XIX – the first half of the XX century in this cluster were prevailing that was laying in logical and legal dimensions, then since the middle of XX century there is an expansion of rhetorical content through, at least partially, extrusion of the logical. Fourthly, on this way the concept of judicial proof has lost – as necessary components of its content – immanent signs of the logical proof, namely, truth of the premises-evidence and necessary logical connection between system of the evidence and conclusion. Concept of standard of proof has undergone significant change: it is divided into three subordinate concepts, usage of which depends on situation. And even those of these subordinate concepts, which correspond to criminal cases and include the strongest requirements, do not require truth or absolute certainty of the conclusion, agreeing only on absence of reasonable doubt that by nature is subjective and practically never avoid some dependence on rhetorical influence. Finally, the history of understanding and expression of legal proof shows that real legal proof goes more and more away from its analog in logic.

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Presumption of Innocence in the Islamic Law

Addaiyan Journal of Arts, Humanities and Social Sciences - Volume-1: Issue-10 (December, 2019) ◽

10.36099/ajahss.3.1.2 ◽

2021 ◽

Vol 3 (1) ◽

pp. 11-16

Author(s):

Nasirullah Khalid

Keyword(s):

Human Rights ◽

Analytical Method ◽

Islamic Law ◽

Burden Of Proof ◽

Presumption Of Innocence ◽

Legal Systems ◽

Criminal Cases ◽

Public Servant ◽

Holy Quran ◽

The Holy Quran

The principle of the Presumption of Innocence is one of the main principles of all modern legal systems. It is also an important right of the accused mentioned in the human rights documents. The principle simply means that an accused considered innocent until proved guilty by a competent court. Using the descriptive-analytical method, this article studies this principle from the Islamic Law perspective exploring its meaning, basis, and exceptions. The article finds that Islamic law recognizes this principle in its highest sources, That are the Holy Quran and Hadith (sayings and actions of the Holy Prophet Mohammad). The Prophet Mohammad (PBUH) himself and so Muslim jurist applied this principle in both civil and criminal cases. Furthermore, the article identifies two main exceptions of the Presumption of Innocence in Islamic law that are: transferring burden of proof from the plaintiff to the accused when there are reasonable doubts against him/her such as strangely enrichment of a public servant after employment and the second exception is the precautionary imprisonment; however the Muslim jurist have different views regarding the application of the precautionary imprisonment which shows their doubts towards this measure specially when there are not enough proofs.

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2. Presumptions and the burden of proof

Evidence ◽

10.1093/he/9780198788720.003.0003 ◽

2017 ◽

Author(s):

Roderick Munday

Keyword(s):

Human Rights ◽

Burden Of Proof ◽

European Convention ◽

Criminal Case ◽

Criminal Cases ◽

Standard Of Proof ◽

The Core ◽

The Subject

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the following: criminal and civil burdens of proof; the ‘legal burden of proof’ and the ‘evidential burden’; the ‘tactical burden’; the prosecution’s legal burden of proof in criminal cases; when the defendant in a criminal case bears the legal burden of proof; the standard of proof; the evidential burden; the judge’s ‘invisible burden’; the burden of proof when establishing the admissibility of evidence; presumptions and the incidence of the burden of proof; and reversal of the burden of proof and the European Convention on Human Rights.

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Moral Certitude: Merits and Demerits of the Standard of Proof Applied in Roman Catholic Jurisprudence

Oxford Journal of Law and Religion ◽

10.1093/ojlr/rwz012 ◽

2019 ◽

Vol 8 (2) ◽

pp. 300-325

Author(s):

Judith Hahn

Keyword(s):

Catholic Church ◽

Canon Law ◽

Burden Of Proof ◽

Roman Catholic ◽

Convincing Evidence ◽

Reasonable Doubt ◽

Criminal Cases ◽

Standard Of Proof ◽

Standards Of Proof ◽

Anglo American

Abstract In Roman Catholic canon law, moral certitude describes the ecclesiastical judge’s full conviction that a defendant is guilty or that a statement of claim made by a civil plaintiff is rightful. Moral certitude is the requirement for a conviction or a civil sentence in favour of the party under the burden of proof. Secular legal orders apply other standards. Anglo-American legal cultures mostly refer to the beyond a reasonable doubt standard in criminal cases, the preponderance of evidence, or the clear and convincing evidence standard in civil matters. Continental European cultures predominantly refer to the standard of full conviction in criminal and civil matters alike. This article compares those standards of proof with moral certitude in order to better understand its merits and limits. Based on this comparison, it examines the arguments both in favour of and against abiding with moral certitude as a standard of proof in the Catholic Church.

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