This is an extract of our Evidence Burden Of Proof In Irish Law Criminal And Civil Copy document, which we sell as part of our Evidence I: Foundations Notes collection written by the top tier of University College Dublin students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Evidence I: Foundations Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
BURDEN OF PROOF
A. Criminal cases
Facts in issue
Separate burden of proof in relation to each fact in issue
Burden of proof may be placed on different parties in relation to different facts in issue.
The burden of proof can shift. Say the A is trying to say that they were provoked - that is a fact in issue - were they provoked? Still for the prosecution to prove they were not, but its separate from others.There is a separate burden of proof for each fact in issue.
Standard of proof
Criminal - beyond a reasonable doubt
Civil - on the balance of probabilities.However, if the burden of proof shifts to the defence, that standard shifts to the balance of probabilities.
Shifting the Burden of proof
This term suggests that the burden of proof is usually on the prosecution or plaintiff, and assumes that this is the default position - that it is highly irregular for the burden of proof to be on the defence -
When this happens, it hasn't exactly shifted. It hasn't moved.
The legal burden of proof v the burden to adduce evidence
1. Legal burden
Burden to prove beyond reasonable doubt or on the balance of probabilities.
2. The burden to adduce evidence
• The 'evidential' burden
Obligation to raise a prima facie case in relation to the fact in issue
• When you raise an issue in court, you need to back it up with some evidence before the court can take it seriously
• Make it a live issue.
• Make it a fact in issue.
• When you try to establish a fact in issue, you have to establish at least some evidence to render it worthy of being a fact in issue.
• So when you raise something, the judge will interfere and ask you to justify why the court should allow it to become a live issue.
• You are not actually proving anything, you're simply giving or showing that there is at least SOME evidence to allow it to be a live issue, only then does the burden of proof arise.
- The judge decides whether or not the evidential burden has been fulfilled.
With the defence, they must show that it is a live issue so the burden to adduce evidence rests on them as well.
Once this is satisfied, the burden of proof arises for the prosecution to prove there was
NO defence (provided it was an exculpatory defence). - against it.
Tactical burden of proof
Technically you don't have to say a word but it looks bad
The tactic of this is not a legal thing its simply a courtroom tactic/ strategy.
LEGAL BURDEN OF PROOF IN CRIMINAL CASES.
➢ Fact in issue - first there is a burden to adduce evidence as to why it should be a fact in issue. Having satisfied the court that there is evidence, the burden of proof then arises.The burden lies on the prosecution with some limited exceptions
The rule in woolmington:
Woolmington v DPP 1935
Woolmingtons wife left him and went to live with her mother. He goes to the mothers house, to talk to the wife and persuade her to come back however, after he leaves having talked to her -
sometime later the neighbour discovers the wife's body who was shot dead. W charged with murder
He admits that he shot his wife but said it was an accident - he tried his best but when it was clear he wasn't persuading her, he intended to tell her that he would kill himself if she didn't come back.
However, it went off by accident when he took the gun out. He only had it with him for genuinity purposes/ to make him seem serious.
Trial judge suggested that the burden of proof was on W, to prove that it was an accident (no mens rea). If not, they should find him guilty of murder.
People (AG) v McMahon 1946Law in this juridction too.
Important to remember that they only represent the minority of cases.
Peculiar knowledge - not very important - even questionable
1. Defence of insanityPresumption that every human being is presumed to be sane until the contrary is proven.
Why? - we will discuss later
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