11

In criminal trial processes that I'm aware of, particularly adversarial, burden of proof is nominally with the prosecution in most circumstances, but in practice it seems to be somewhat shared - both sides introduce witnesses, and both sides cross-examine the other's witnesses, each generally trying to create a convincing story and undermine the basis of the other's story.

So I wonder whether there are any criminal trial processes around the world which place the entire burden of collecting evidence on the prosecution, and the burden of testing it on either the prosecution or a combination of prosecution and court, making it unnecessary for the defence to introduce or test evidence, and sufficient for them to point out shortcomings in the prosecution's evidence base.

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  • 10
    In truly criminal jurisdictions, the people in charge tend to execute you first and let God sort it out.
    – ohwilleke
    Oct 12 at 23:40
  • "entire burden of collecting evidence on the prosecution, and the burden of testing it on either the prosecution" -- Not sure what you meant here, but there has to be some other party than the prosecution to weigh the evidence. Usually it's the judges or a jury. I hope you aren't looking for the sort of "process" where the prosecution can take whatever they think counts as "evidence", then "test" it, say it's all fine and accurate and get a conviction based on that, without anyone else having the job of looking at it objectively.
    – ilkkachu
    Oct 13 at 10:28
  • 2
    No, I'm not hoping for a process where the prosecution gets to do it all without being reviewed. Instead one where if the prosecution case isn't strong enough it's rejected by the court and the defendant doesn't have to rely on hiring a good lawyer and finding witnesses to defend them.
    – bdsl
    Oct 13 at 12:44
  • 3
    What I think you are trying to articulate is a non-adversarial legal system that has fairly adequate protections for people not involved in the process who can be impacted by it. While not criminal, the Roman Catholic Canon law process may be closest to what you are contemplating as it uses a "devil's advocate" in lieu of a true representative of opponents of certain canon law decisions. The French Council of State (an administrative law forum) also has something somewhat similar to that concept, as do similar bodies modeled upon it.
    – ohwilleke
    Oct 13 at 20:49
  • 1
    Inquisitorial system is where one party (the judge) is responsible for gathering the facts, both incriminating or exculpatory. Oct 14 at 9:52

10 Answers 10

42

The common law adversarial system is just that: the prosecution must prove its case beyond reasonable doubt.

The defense is not obliged to call evidence at all. They are allowed to though: they will do it merely if they feel that the prosecution evidence needs rebuttal — in order to discredit the evidence or, at least, raise that "reasonable doubt".

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    Furthermore, in practice, in a very significant share of criminal cases, the defense offers no witnesses, introduces no exhibits, makes only minimal evidentiary objections, and doesn't engage in much cross-examination. The defense still makes an opening statement and closing statement summing up the expected and actual evidence with their spin compared to the jury instructions, but it is pretty close. A week long prosecution case and a ten minute defense case isn't uncommon.
    – ohwilleke
    Oct 12 at 23:37
  • 5
    @bdsl Did you mean "the defense is often obliged"? No, no such obligation at all. It's up to them.
    – Greendrake
    Oct 12 at 23:43
  • 25
    @bdsl: Note that your practical observation, you probably have a large degree of survivor bias: in many jurisdictions, there are rules such that the prosecution should demonstrate (or at least have) some sufficient level evidence to convict before proceeding to trial (or at least to the point of empaneling a jury; for example, either the grand jury should not indict or the defense should make a motion to dismiss the charges). In theory, in such jurisdictions, if the prosecution doesn't have a case that can best a "non"-defense, they shouldn't present it or be allowed to present it.
    – sharur
    Oct 12 at 23:53
  • 4
    ISTR reading about cases where the Judge stepped in immediately after the prosecution had finished, to require an acquittal on the basis that based on the prosecution evidence alone, there was reasonable doubt. So the defense doesn't always even need to decide whether to call any witnesses.
    – nigel222
    Oct 13 at 11:29
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    @nigel222 Yes that is possible in New Zealand for example. See s 147: "The court may dismiss the charge on its own motion or on the application of the prosecutor or the defendant.".
    – Greendrake
    Oct 13 at 12:50
19

Yes

The common law legal systems all require proof beyond reasonable doubt of each of the elements of the crime. If the prosecution fails to provide enough evidence to meet that burden on any of the elements then the defendant is not guilty.

As a practical matter, this is dealt with in different ways depending on the status of the investigation/trial.

  • If the police don't believe they have sufficient evidence they will continue to investigate until they do (or they give up).
  • If the police take their evidence to the prosecutor/DA and they don't believe its sufficient then the police will be told to go away and get more.
  • Once the prosecutor/DA decides to proceed, there is usually a preliminary hearing. In most places in the common law world, this is called a committal hearing and takes place before a judge. Some parts of the USA still use the Grand Jury system. Notwithstanding, the general theory is that the judge/jury is shown all the evidence and asked this simple question: if all the evidence presented is accepted as true, is there enough to convict? If the answer is yes, the defendant is indicted to stand trial, if no, then they aren't.
  • During the trial, once the prosecution has rested (i.e. before the defence has presented any evidence), if they haven't met their burden, the defence might make a motion for a directed verdict (or the judge might do so unprompted). That is, if the judge believes that all of the prosecution's evidence if accepted in full has not proved beyond a reasonable doubt all the elements of the crime, they will direct the jury to return a not guilty verdict and the trial is over. And unappealable. And subject to double jeopardy. This is why the previous steps are so important to the government.
  • On appeal from a guilty verdict (whether or not the defence presented a case), the appeals court may decide that, based on the evidence the prosecution presented, no reasonable jury could have found the defendant guilty (therefore implying that this jury was unreasonable). They may enter an acquittal, ending the matter, or direct a re-trial.
5
  • Relevant to OP's concerns, the first three points are places where a case can be dismissed without any expense or work required by the accused. The accused has no involvement in the first two. They don't even have the right to counsel in a grand jury hearing and may not even be informed that the hearing happened (they're not on trial, the evidence is). Having a case thrown out before indictment isn't the same as an acquittal, though, so they can be indicted later if more evidence surfaces.
    – bta
    Oct 13 at 20:33
  • 1
    Strictly speaking, (some) grand juries aren't asked "if all the evidence is true, is there enough to convict?" but whether the evidence provides Probable Cause to believe (a) that the alleged crime was committed (b) by the defendant - a lower standard than Reasonable Doubt.
    – minnmass
    Oct 13 at 21:47
  • Not an expert - but has an appeals court ever actually directly overturned a verdict? Wouldn't they usually just rule on a matter of law or the reliability/admissibility of evidence?
    – moonman239
    Oct 15 at 17:40
  • @moonman239 yes
    – Dale M
    Oct 15 at 22:38
  • sounds like OP is talking de facto not de jure. i mean if OP were talking de jure sounds like a pretty trivial question. am i wrong? if not then your answer seems to be talking about jure. what's going on?
    – BCLC
    Oct 15 at 22:44
9

"burden of proof is nominally with the prosecution in most circumstances, but in practice it seems to be somewhat shared"

The issue is in your interpretation of the phrase "burden of proof". This term has a specific meaning. What it doesn't mean is that a particular party is the only one who can or should give evidence. Rather, it means that the responsibility for proving a fact which is a required element of the crime lies with that party.

These concepts may appear on the surface to overlap. The prosecution says "my evidence shows that the defendant did X" and the defence says "my evidence shows that the defendant did not do X"; both parties appear to be taking directly opposing approaches. But the important distinction is that the prosecution, to win their case, must establish that the defendant did X while the defence, to win their case, does not need to establish that the defendant did not do X.

To put it another way, it is enough for the defence that the prosecution fails to prove their case. For the prosecution, it is not enough that the defence fails to prove their case. Going back to the example, if the prosecution fails to establish that the defendant did X, then the defence has won. But if the defence fails to establish that the defendant did not do X, then that is insufficient by itself for the prosecution to win.

For that reason, the defence can in theory sit back and do nothing at all but simply watch the prosecution's case fail (in practice they can make a submission of "no case to answer" if they feel they can win without any defence). The prosecution does not have the option of making an accusation and then sitting back to watch the defence fail to disprove it. They must establish the facts of the crime beyond reasonable doubt.

5
  • It may be worth pointing out that if the Prosecution does establish all of the elements of the offense beyond a reasonable doubt, there is then a reverse onus on the Defense to establish the elements of an affirmative defense. For example, even if the Prosecution proves all of the elements of the crime of assault, the defense can attempt to prove the elements of an involuntary intoxication defense or a duress defense. Oct 13 at 9:18
  • 2
    @DavidSchwartz That isn't the case, for England at least. There is no obligation to raise a defence (nor would one even be available for an absolute liability offence) but even if one is raised, the burden of proof shifts back to the prosecution to disprove the defence beyond reasonable doubt.
    – JBentley
    Oct 13 at 9:39
  • 1
    You could equally well argue that the prosecution has no obligation to prove anything, the defense will just win if it doesn't. Same here. Sure, the defense has no obligation to establish an affirmative defense, but the prosecution will win if it doesn't after the onus reverses. I checked a few UK laws that I could find and they require the Defense to establish any affirmative defenses by a "balance of probabilities". And this article suggests that's the general rule. Oct 13 at 16:07
  • @DavidSchwartz "You could equally well argue that the prosecution has no obligation to prove anything, the defense will just win if it doesn't." - agreed but see my first paragraph about the definition of burden of proof. Each side is free to prove (or not prove) whatever it wants, but in order to win the case, the concept of burden of proof tells us who must prove what. Defences, being entirely optional (and non-existent for many crimes), are a side-point.
    – JBentley
    Oct 13 at 18:39
  • 1
    I agree that they're a side-point. That's why I started my comment with, "It may be worth pointing out". The person asking the question may have heard about the burden on the defense when an affirmative defense is argued and that may have been what confused them. Oct 13 at 18:43
3

In any legal system where the defendant is "presumed innocent until proven guilty beyond a reasonable doubt", the burden of proof rests entirely on the prosecution. The defense has no burden which would require them to provide evidence.

However, the defense has the right to provide evidence, and it is almost always in the defense's interest to do so. The goal of the defense is to convince the jury (or judge, if there is no jury) that the prosecution's evidence does not prove the defendant to be guilty beyond reasonable doubt. If the defense has evidence which contradicts the prosecution's evidence, or at least introduces doubt that the prosecution's evidence shows what they purport it to show, then the defendant is more likely to be found not guilty. The defense lawyer has a duty to act in the defendant's interest, and it would be a dereliction of that duty not to provide evidence which is likely to help their client achieve a better outcome, if such evidence exists. And such evidence almost always exists, even if it only indicates that the defendant deserves a more lenient sentence.

So this is not a matter of "burden" or about who "should have to" provide evidence. Either the defense is permitted to introduce evidence, in which case you get the existing court system; or the defense is not permitted to introduce evidence, which would be much less fair and much more likely to lead to miscarriages of justice.

2
  • sounds like OP is talking de facto not de jure. i mean if OP were talking de jure sounds like a pretty trivial question. am i wrong? if not then your answer seems to be talking about jure. what's going on?
    – BCLC
    Oct 15 at 22:45
  • @BCLC The point I'm making is that whether or not the defense "needs" to deal with evidence is not a meaningful measure of a legal system, because the defense wants to deal with evidence in almost all practical cases, because the defendant can benefit from doing so. To my mind it does not make any sense to describe that as a burden; it is a right.
    – kaya3
    Oct 15 at 22:52
2

As other answers noted, the defence doesn't have to provide evidence at all if they don't want to. It's up to the prosecution to prove guilt in most places, and the defence only needs to provide evidence in as far as they want to challenge the evidence provided by the prosecution.

As for what you actually seem to be getting at:

Having the prosecution take on the entire burden of evidence (of both sides) would be a gigantic conflict of interest that would probably only exist in places you really don't want to live, if it exists at all.

The goal of the prosecution is ... to prosecute. The goal of the defence is to defend. Neither party would be particularly motivated to provide evidence that works against their side. If you want to get rid of this structure and simply have someone provide evidence without the goal to either prosecute or defend, then you'd need to find someone unbiased (and have some way to ensure they're unbiased and they actually do a good job), which could be difficult, to say the least. It's much easier to get 2 biased parties to represent each side.

Separating the two is the best guarantee that each side is represented in the best possible way and that you'd get the most accurate representation of what actually happened*.

Now the prosecution may be, and often is, legally required to share all evidence, and they may have a duty to find all the most relevant evidence in order to be sure of the truth (and certainly should be motivated to be sure they have the right person before charging anyone). But they still wouldn't be motivated to go to the same lengths to find evidence and present it fairly as the defence would (pay someone enough, and they'll scour every inch of the Earth for even the tiniest morsel of evidence that could help your case). The less honorable members of prosecutions may go as far as they can get away with in omitting evidence or presenting it unfairly. The defence is a very core part of the checks-and-balances on the prosecution and a very core part of ensuring a fair trial.

As for why the court doesn't take on much responsibility to gather or test evidence, letting the accused pick their own lawyer to do that is a better idea*. You'd need quite an advanced understanding of the case to challenge evidence properly, so this isn't something that can really just happen within the court. A lawyer (or lawyers), or similar, would need to actually study the case in detail. Having the accused pick this lawyer means they won't be able to argue that the court represented their case poorly (but of course if the lawyer they chose represents them poorly, there may be mechanisms in place to let them choose another). Of course in a lot of places you can get a court-appointed lawyer or public defender, but this is typically provided to those who can't afford their own representation (which is probably a whole other rabbit hole one can go down).

*: (at least in theory)


Let's suppose the prosecution gathers all the evidence. Consider a fairly simple example of an eye witness that would help the defence.

Since the eye witness would hurt their case, the prosecution wouldn't want to mention this eye witness to the defence or court, and they certainly wouldn't want to spend a lot of time or effort actually finding out whether such an eye witness exists, locating them and convincing them to testify.

Assuming they didn't gather their own evidence, neither the defence nor court would have any idea that this eye witness exists.

If the defence gathered their own evidence, they'd be much more motivated to find and present this eye witness.

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    1) I'm not sure which jurisdiction you're referring to, but in E&W the goal of the prosecution is to ensure a fair trial - which includes disclosing exculpatory information to the defence such as the eye witness example in your answer. The prosecutor and the police have a statutory duty to follow all reasonable lines of enquiry that point towards or away from a suspect so they would (and do) try to locate relevant witnesses...
    – Rick
    Oct 13 at 13:44
  • 2) ... After all, if the witness' evidence shows the wrong person is on trial it means that they are the victim of a miscarriage of justice and the real offender is still at large. But things may be different where you are.
    – Rick
    Oct 13 at 13:45
  • 1
    @RockApe The goal of the prosecution is not to ensure a fair trial, the goal of the legal system is to ensure a fair trial. Various laws and regulations (including how the prosecution must or should act) may exist for this purpose, and the defence and the court play huge parts in ensuring a fair trial.
    – NotThatGuy
    Oct 13 at 14:26
  • Again, maybe in your jurisdiction (which from your answer seems to be USA but the lack of citations makes it impossible to say for sure), but E&W prosecutors, as part of the legal system, have a statutory duty under Article 6 (by virtue of s.6 HRA1998) to ensure a fair trial which includes not hiding relevant information from the defence that may show them to be potentially innocent.
    – Rick
    Oct 13 at 15:22
  • @RockApe FYI, I edited the answer after your first comment to include (among other things): "Now the prosecution may be, and often is, legally required to share all evidence, and they may have a duty to find all the most relevant evidence in order to be sure of the truth"
    – NotThatGuy
    Oct 13 at 15:45
1

This is typically the case: the prosecution must prove there is a case. If they can't then the defense might not even need to defend. See:

Submission of No Case to Answer

Where the prosecution case is weak, either because there is no evidence to prove the offence or, although there is some evidence, the evidence is insufficient to support a conviction, the defence may make an application to the judge (in the Crown Court) or to the magistrates or District Judge (in the magistrates’ court) to dismiss the case because there is no case to answer.

A successful application will result in a not guilty verdict.

You can see from the source that this usually happens after the prosecution rests their case (typically in a case the prosecution goes first, the defense goes second). If the prosecution case is weak, then the case can be halted at this point via "no case to answer", and the defense would not need to present their case.

Real life example:

Court orders Najib to enter defence over RM42mil SRC case (updated)

High Court judge Justice Mohd Nazlan Mohd Ghazali made the order after ruling that the prosecution had proven a prima facie case against the Pekan MP.

"The prosecution has successfully adduced credible evidence proving each and every essential ingredient of the offences of abuse of position for gratification, criminal breach of trust and money laundering as framed in the charges," said the judge who took almost an hour to read his decision here on Monday.

Note this doesn't mean Najib is convicted. It is still possible the defense is strong enough that the trial results in a not guilty verdict. It just means there is enough evidence against him that he must defend himself ("enter his defense").

1

So I wonder whether there are any criminal trial processes around the world which place the entire burden of collecting evidence on the prosecution

In the US, there is a burden on the prosecution to present the case against the defendant's guilt. The prosecution is required to provide all exculpatory evidence to the defense, and it is a massive ethics violation for a prosecutor to prosecute a case if they do not have a good faith belief, after due diligence in examining the evidence, that the defendant is guilty.

The problem, of course, is that prosecutors are human, are confirmation bias is a thing. In some cases, prosecutors may even act with malice, and deliberately misrepresent the case. The fact that the defendant often presents a case can be viewed not as that they have the burden of refuting the prosecutor's case, but rather they have the right to step in if the prosecutor has not fulfilled their obligation to refute their own case.

Another way of looking it is that there is some bar that has to be reached to find the defendant guilty. Presumption of innocence means that we start below that bar, and the prosecution tries to get as far above that bar as possible, and then once the prosecution is done, the defense tries to get back down below the bar. The farther above the bar the prosecution gets, the more evidence the defense has to present to get below it. If the prosecution didn't get above it in the first place, then the defense doesn't have to present any evidence.

As long there are cases close to that bar, there are going to be times where a strong defense can make the difference as to whether we end up above or below the bar. In any particular case, we may be able to put the bar someplace where a defense is unnecessary, but we can't put in anywhere such that no case needs a defense, unless it's so high that no one can be convicted.

making it unnecessary for the defence to introduce or test evidence,

If the bar is set so high that it's completely impossible for the prosecution to meet it, then it's a moot point. As long as it's possible for the bar to be reached, then once it is reached, the defense needs to present evidence the other way.

Like many things in life, in law, "can" generally translates into "must". If your lawyer can decrease the probability of you getting acquitted by juggling while hopping on one foot, they ethically must juggle while hopping on one foot. Fairness requires that we allow a defendant to present a case, and as long as a defendant can present a case, they must present a case unless they're willing to get convicted or the prosecutor's case is so extremely flimsy that there's absolutely no chance of conviction.

and sufficient for them to point out shortcomings in the prosecution's evidence base.

Presenting a case is pointing out shortcomings in the prosecution's evidence base.

1

As others pointed out, there is a gap between theory and practice.

  • In theory, the prosecution must prove their case and the judge and/or jury will act accordingly. The defense has to do nothing.
  • In practice, prosecutors are not supposed to bring a case if they don't think they can win (a waste of taxpayer's money, if nothing else). So if the prosecutor sees fit to present a case, it is a good guess that the defense should answer.

But there is actually a system where the defense can remain silent more easily. In inquisitorial systems, it is the task of the judge to determine truth and justice, not just to be a referee between two sides. So there is a legal professional in the room who is not automatically on the side of the prosecution, and allowed to question witnesses, etc. That can be a good thing in minor cases where the defendant appears without counsel.

0

"Innocent until proven guilty" sets the stage in the

I know of a case where the prosecution presented a few items of evidence. Each one was disallowed as hearsay.

When the prosecution rested, the defense counsel said, "Your honor, the defense rests". This is important - see below.

The judge told the jury to return a "directed verdict"; there was no evidence of guilt, so the only possible verdict was 'innocent'.

Had the defense counsel presented anything, the prosecution could rebut and use that as evidence of guilt.

1
  • Actually, it answers the question very precisely. Under all United States law, the burden of proof is entirely on the prosecution. I happen to have direct knowledge of the case/anecdote that I described. Please remove your down-vote. Oct 14 at 1:39
-1

You cannot rely on the prosecution's evidence only. There are such things as conflicting evidence and unreliable witnesses. Probabilities must be weighed, it may come down to "who has the best eye witnesses".

For example, the prosecution may have an eye witness claiming you are the bank robber. This witness has no particular faults. A law-abiding citizen with normal eyesight. Without defence-side evidence, the only defence is "Eye witnesses sometimes make mistakes". Alone, that is too weak. If that was enough, eye witnesses would be useless. But you may claim an alibi: You were at a business dinner at the time, and bring the 8 other people as eye witnesses for that. A good defence, the prosecution's witness probably saw someone who looks like you. Unless the 8 are unreliable witnesses, such as members of a crime gang.

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