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Notes on burden of proof in criminal cases
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As goes the famous ‘golden thread’ speech given by Viscount Sankey in Woolmington v DPP ; “No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.” In simpler terms, the general rule above is that the prosecution carries a legal burden to prove the elements of the offence and that the accused only need to raise a defense on a burden that is merely evidential.
A legal burden is one where there is an obligation to prove, which is a heavy responsibility and would generally reside on the prosecution. A judge would direct a jury as to the burden of proof and failing so or giving an incorrect direction would result in a quashed conviction. An evidential burden on the other hand is a much lighter burden, where it requires the accused to merely raise the defense, rather than to prove it.
As well as the general rule created by Viscount Sankey, there were exceptions as well, where the legal burden has been shifted to the accused to prove his defense on a balance of probabilities.
The two exceptions given by Viscount Sankey are that the defense of insanity and statutory reversals. The defense of insanity will require the application of the McNaghten Rules if it is alleged by the accused, which will have to prove the rules in McNaghten with a legal burden on a balance of probabilities. If insanity is being purported by the prosecution, the case on point would be Robertson , where the accused was said to have punched his mother to the ground and stamped on her head and thigh whilst wearing heavy boots or shoes. Here, the burden on the prosecution is a legal one, to satisfy the jury be...
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...narily favor the defendant and the burden of proof carried by the prosecution is heavy, but not absolute. The reverse persuasive burden requires the defendant to prove his innocence. It strongly shifts the balance in favor of law enforcement. It can be expected to bring more convictions, but also more convictions that are possibly erroneous. To be compatible with the presumption of innocence, this readjustment must be justified.
It can be said that the rule in Woolmington and Art 6(2) of the ECHR carry the same meaning – the presumption of innocence. However, Art 6(2) seems to outweigh the rule in Woolmington as it is apparent that it had made a bigger impact. It is submitted that the difference between both authorities are that Woolmington carries a common law rule whereas Art 6(2) carries a more statutory value as it is reinforced by the Human Rights Act 1998.
``In criminal law, confession evidence is a prosecutor’s most potent weapon’’ (Kassin, 1997)—“the ‘queen of proofs’ in the law” (Brooks, 2000). Regardless of when in the legal process they occur, statements of confession often provide the most incriminating form of evidence and have been shown to significantly increase the rate of conviction. Legal scholars even argue that a defendant’s confession may be the sole piece of evidence considered during a trial and often guides jurors’ perception of the case (McCormick, 1972). The admission of a false confession can be the deciding point between a suspect’s freedom and their death sentence. To this end, research and analysis of the false confessions-filled Norfolk Four case reveals the drastic and controversial measures that the prosecuting team will take to provoke a confession, be it true or false.
This concept now embedded in the Federal Rules of Evidence can trace its philosophical underpinnings in prerevolutionary England. Before the 17th century, English courts had very few limitations on what evidence could be admitted into court.3 This court system, which was created in the wake of Norman invasion in 1066, did not ...
Subsequently, one of the main components of the procedural limitation is innocent until proven guilty, which brings about the right to a Grand Jury- a panel that determines whether or not there is a need to go to trial. As a result, a guilty verdict in criminal cases is determined with evidence that is sufficient and that must be proved “‘beyond a reasonable doubt’” (pg.131), so there is an immense need to increase the chances for the respect of “reasonable doubt” (pg.
Simmonds C., ‘Paramountcy and the ECHR: a conflict resolved? [2012] Cambridge Law Journal Vol. 71 Issue 3, 498-201
Importantly, the crux of this question mainly lies on a critical analysis on Harris’s statement on the application margin of appreciation under Art.2. and Art. 8 of European Convention on Human Rights (hereinafter referred to as ‘ECHR’). In examining Harris’s statement , it simply denotes that the application of the convention may often be varied because of the absence of consensus probably due to cultural relativism or pluralism. It has been propounded that human rights is universal , but it is inevitable for each country to adopt different practices and perception.
‘Judges, lawyers and psychologists believe it to be just about the least trustworthy kind of evidence of guilt, whereas jurors have always found it more persuasive that any other sort of evidence’ Brown (1986)
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR), Art 5(1)(e)
...T. M. (1997). Can the jury disregard that information? The use of suspicion to reduce the prejudicial effects of retrial publicity and inadmissible testimony. Personality and Social Psychology Bulletin, 23(11), 1215-1226.
In order to understand how to compile evidence for criminal cases, we must understand the most effective types of evidence. This topic is interesting because there are ample amounts of cases where defendants have gotten off because of the lack of forensic evidence. If we believe forensic evidence is so important and it affects our decisions, then maybe we need to be educated on the reality of forensic evidence. If we can be educated, then we may have a more successful justice system. If we have a more successful justice system than the public could gain more confidence that justice will be served. In order to do this, we must find what type of evidence is most effective, this can be done by examining different types of evidence.
The insanity plea’s first successful use occurred in England by a man named Daniel M’Naghten. M’Naghten believed falsely that the Prime Minister of England established a plot against him, M’Naghten decided to take action, attempted to ambush the Prime Minister, and unfortunately shot and killed his press secretary in the confusion. Established psychologists in England testified to the mental instability of M’Naghten. The jury eventually reached a verdict of not guilty by reason of insanity and was held in a mental institution for the remainder of his life. This ruling was then brought to The House of Lords, and 15 judges met to determine the judicial standard of the insanity plea. They established a test under the so called “M’Naghten Rule”, which Douglas states:
*referred to in order to determine such cases as the validity of a contract or whether or not someone was guilty of murder
Therefore, the M’Naghten test is the applicable legal standard to determine legal insanity (in this jurisdiction). The M’Naghten test asks the following three questions: Did the defendant suffer from a mental disorder at the time of the act? Did the defendant know the nature and quality of the act? Did the defendant know that the act was wrong? According to M’Naghten, insanity applies if the defendant did not know the nature and quality of the act, or did not know that the act was wrong, at the time of the act, due to a mental disorder. In regards to the first question, the defendant must suffer from a known psychological, mental disorder; this disorder must cause a defect in reasoning. If the defendant did not suffer from a mental disorder at the time of the act, then the defendant is not legally insane. Once it is known that there is a mental disorder, the second question to consider is whether or not the defendant knew the nature and quality of the act. The ‘nature’ of the act refers to the physical aspects of the offense, such as physically getting into the car and physically pressing onto the gas pedal to run someone over; the ‘quality’ refers to the potential harm (or outcome) that could occur from the offense, such as running someone over with a car would be to severely harm or even kill that person. The defendant must not know the nature and quality of
Pennington, Ken. "Innocent Until Proven Guilty: The Origins of a Legal Maxim." Maxwell School of Citizenship and Public Affairs. Syracuse University, n.d. Web. 05 Jan. 2014. .
The first condition to be established is the defendant’s defect of reason. This must show that the defendant was impaired at reasoning. However, if the defendant was capable of reasoning but still committed a crime despite this then the defence of insanity will not be available as decided in the case of Clarke (1972)
The insanity defence is defined by the M’Naughten Rules2 which state that it must be proved that the defendant, at the time of the act, was under a defect of reason, derived from disease of the mind3 and that he wasn’t aware that what he was doing was wrong. Recently the definition of ‘disease of the mind’ has been modernised in “an impairment of mental functioning caused by medical condition”4.