What is the difference between ‘evidential burden of proof’ and ‘legal burden of proof’?

At first sight, these two concepts seem identical. They are not. If you wish to make litigation your career, you need a sound understanding of these concepts. It is not that difficult, really.

Najib Razak, the former prime minister, has been charged.

What will the prosecution have to do to succeed?

What will the Defence counsel do to break the prosecution case?

One of the things both sides will be doing is to carry out a microscopic examination of the legal burden of proof and the evidential burden of proof. 

What are those?

An example will do to assist in understanding these two different concepts.

Suppose someone has been murdered…

A person (A) has been charged.  The question is: who has to prove to the court that A is the murderer? It is the Prosecution (usually the State).

It is not for A to show that he did not murder the victim.

This is why the Prosecution is said to bear the legal burden.

It is the Prosecution team that bears the burden of demonstrating to the court that the accused A murdered the victim.

The accused does not have to say a thing in his defence.

If the Prosecution has not discharged the burden, the accused does not have to say anything: on those rare occasions, the judge will simply acquit the defendant, ‘without calling the defence’.

So that is the legal burden.

Standard of Proof and 

Now we must look at what ‘standard of proof’ means.

There is a lot of evidence in the murder trial.  But the quality of the evidence must cross a line.

That line is called the ‘standard of proof’.

It is also called the ‘evidential burden of proof’.

Suppose the Prosecution took all of its evidence  – which has not been weakened by cross-examination – and were to set it one on top of another, like a line of bricks.

The height of evidence must reach above the line we spoke of earlier.

The height of the required evidence is the ‘standard of proof’.  If the prosecution cannot pass over that hurdle, it is said not to have proven ‘its standard.’

In criminal cases that required ‘height’ is called ‘beyond a reasonable doubt’.

It means that the prosecution evidence puts the question of who murdered the victim beyond doubt.

Suppose the judge has a doubt whether the accused is really guilty.

If the judge’s doubt is ‘reasonable’, the accused must be acquitted – and set free.

That ‘doubt’ is not the judge’s  ‘suspicion’ that the accused is not guilty.

It must be something more.  It must be reasonable.

Hence the phrase, ‘reasonable doubt’.

So also the opposite; if the judge has no reasonable doubt, he must find the accused guilty.

A judge cannot convict on a whim

The judge’s state of belief must be based on the evidence before him.

The judge cannot convict if he ‘suspects’ the accused is guilty.

It is not his ‘gut feeling’.

He cannot ‘guess’ if the accused is guilty.

He cannot convict ‘on a feeling’, or on an ‘instinct’.

What the quantifiers say

Some people quantify that ‘beyond a reasonable doubt line’ as ‘80% believability’ – with only a ‘20% of lingering doubt’.

So – the quantifiers argue – where the Prosecution can produce 90% evidence, then the case has been proven to be ‘beyond a reasonable doubt.’

They argue that the accused must, therefore, be convicted.

Civil cases

In a civil case, the standard (or ‘height’) is lower.

It is on a ‘balance of probabilities’.

The quantifiers argue that this amounts to only 51% proof.

Thinking in terms of percentages does not always work

Judges and lawyers don’t like percentages such as these. This is because the facts and evidence and circumstance in every case will be different.  Reality changes all the time.

Judges look at the quality of the evidence; not its quantity.

This is why the law merely states the principle as ‘beyond a reasonable doubt’,  or ‘on a balance of probabilities’.

It leaves it to each judge to determine whether he or she has had a reasonable doubt.

These numbers are only a guide

I used these ‘numbers’ argument merely to demonstrate the point of the differing standards of proof between civil and criminal cases.

The system is not 100% fool-proof

Yet, it works 90% of the time.

If the judge makes a mistake assessing the evidence, there are, in each case, at least two levels of appeal.

That is why we have appeals.

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