Meaning of Burden of Proof and Standard of proof. Zambian Case Law.
This paper discusses the meaning of “burden of proof” and “standard of proof” and will also explain the direction of the Judge given to the jurors in the given set of facts.
1. BURDEN OF PROOF
It is derived from the Latin expression onus probandi. The burden of proof or onus of proof refers to the obligation on a party to satisfy the court to a specified standard of proof that certain facts are true. The facts for this particular purpose are facts in issue.1
Burden of proof is closely associated with the Latin maxim semper necessistas probandi incumbit ei qui agit which means the necessity of proof always lies with the person who lays the charge.2 The general rule is that the burden lies on a party who asserts in the affirmative.
In the case of ROBINS v NATIONAL TRUST COMPANY3, the House of Lords stated, inter alia, that
“In the nature of things, the negative is more difficult to prove than the positive. It is an ancient rule founded on consideration of good sense and should not be departed from without strict reason.”
Burden of proof has two distinct meanings, namely; legal burden and evidential burden.
1.1 Legal burden
This is the burden of proof that is discharged by pleadings. The burden of proof in this sense rests on the party, whether plaintiff or defendant who substantially asserts in the affirmative of the issue. It is fixed by either substantive law or pleading at the beginning of the trial by the state of pleadings and it remains unchanged throughout the trial.
1.2 Evidential burden
This is the burden of adducing evidence that a party has. It may shift constantly according as one scale of evidence or other preponderance. The onus in this case rests on the party who would fail if no evidence at all or no more evidence is called on the other side.
A. BURDEN OF PROOF IN CRIMINAL CASES
In criminal cases, the burden of proof rests entirely with the prosecution. The defence is not required to prove innocence as there exists a presumption of innocence.
1. BURDEN OF PROOF
It is derived from the Latin expression onus probandi. The burden of proof or onus of proof refers to the obligation on a party to satisfy the court to a specified standard of proof that certain facts are true. The facts for this particular purpose are facts in issue.1
Burden of proof is closely associated with the Latin maxim semper necessistas probandi incumbit ei qui agit which means the necessity of proof always lies with the person who lays the charge.2 The general rule is that the burden lies on a party who asserts in the affirmative.
In the case of ROBINS v NATIONAL TRUST COMPANY3, the House of Lords stated, inter alia, that
“In the nature of things, the negative is more difficult to prove than the positive. It is an ancient rule founded on consideration of good sense and should not be departed from without strict reason.”
Burden of proof has two distinct meanings, namely; legal burden and evidential burden.
1.1 Legal burden
This is the burden of proof that is discharged by pleadings. The burden of proof in this sense rests on the party, whether plaintiff or defendant who substantially asserts in the affirmative of the issue. It is fixed by either substantive law or pleading at the beginning of the trial by the state of pleadings and it remains unchanged throughout the trial.
1.2 Evidential burden
This is the burden of adducing evidence that a party has. It may shift constantly according as one scale of evidence or other preponderance. The onus in this case rests on the party who would fail if no evidence at all or no more evidence is called on the other side.
A. BURDEN OF PROOF IN CRIMINAL CASES
In criminal cases, the burden of proof rests entirely with the prosecution. The defence is not required to prove innocence as there exists a presumption of innocence.