Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-A – Common Law

Part III-A — Common Law Approach

Good men everywhere praise the presumption of innocence. And be they Frenchmen, Germans, or Americans, they agree on the demand of the presumption in practice. Both here and abroad, the state’s invocation of criminal sanctions demands a high degree of proof that the accused has committed the offense charged. To express the requisite standard of proof, common lawyers speak of the prosecutor’s duty to prove his case beyond a reasonable doubt. And Continental lawyers invoke the maxim in dubio pro reo – a precept requiring triers of fact to acquit in cases of doubt.1George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L. J. 880, 880 (1968).

This post follows up on my discussion on the common and civil law approaches to the standards and burdens of proofs.  I began this series of posts by setting out the background and discussing relevant terms and definitions.  I then provided a brief overview of how the common and civil law systems split off and developed over the centuries and how the reasonable doubt standard came about.  I also touched upon the in dubio pro reo principle as it relates to the standard of proof.  In the next two posts I will separately discuss the common and civil law systems in order to compare and contrast their respective approaches to the standards and burdens of proof.

This is hardly a comprehensive exposition on comparative criminal proceedings.  Nonetheless, it may be a useful primer for advocates unfamiliar with either common law or civil law proceedings who may find themselves in one of the international or internationalized courts.  Criminal proceedings in these courts are hybrid, combining both common and civil law modalities.  Judges in these courts come from different legal traditions with different notions of standards and burdens of proof.  The trial proceedings in these courts reveal that many of the judges – being prisoners of their own legal traditions and obdurately resistant to understanding the fundamental precepts of adopted modalities from legal traditions other than their own – tend to interpret and apply the hybrid rules of procedure and evidence with little, if any, deference to the intended purpose of the rules and procedure of these sui generis courts.

Defense lawyers appearing before these judges should, at a minimum, have a modest understanding of the two major legal traditions.  How judges from the various systems within these legal traditions view standards and burdens of proof may yield some profit in making strategic and tactical decisions during the proceedings and in effectively formulating submissions before them.

Common Law Systems

innocent-until-proven-guiltyThe presumption of innocence, also referred to by the Latin expression ei incumbit probatio qui dicit, non qui negat (the burden of proof is on the one who declares, not on the one who denies), means that one is considered innocent unless proven guilty.2See International Covenant on Civil and Political Rights (“ICCPR”), Art. 14(2); European Convention on Human Rights (“ECHR”), Art. 6(2); American Convention on Human Rights (“ACHR”), Art. 8(2).  In common law systems, the presumption of innocence is safeguarded by placing on the prosecution the burden of establishing the accused’s guilt beyond a reasonable doubt.  Quoting from Coffin v. United States (1895),3Coffin v.United States, 156 U.S. 432, 453 (1895). the United States (“US”) Supreme Court in In re Winship noted:

The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual errors. The standard provides concrete substance for the presumption of innocence – that bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation of the administration of our criminal law.”4In re Winship, 397 US 358, 362-63 (1970), (emphasis added, internal citations omitted) (hereinafter “Winship”).

As we saw in the previous post, Winship read this right into the US Constitution, holding the State (prosecuting authorities) to the standard of proof beyond a reasonable doubt.  This standard is applied with other constitutional rights fundamental to the guaranteed due process rights – rights which are explicitly set out in the International Covenant on Civil and Political Rights (“ICCPR”), and other regional conventions, such as the European Convention on Human Rights (“ECHR”),5See, e.g. ICCPR, Art. 14(1), ECHR, Art. 6(1). and which apply at the international courts.6Statute of the International Court for the Former Yugoslavia (“ICTY”), as amended September 2009, Art. 21; Statute of the International Court for Rwanda (“ICTR”), as amended January 2010, Art. 20; Rome Statute of the ICC, A/CONF.183/9, 17 July 1998, Art. 67; Statute of the Special Tribunal for Lebanon (“STL”), S/RES/1757 (2007), Art. 16; Statute of the Special Court for Sierra Leone (“SCSL”), 16 January 2002, Art. 17; Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia (“ECCC”), NS/RKM/1004/006, 27 October 2004, Art. 35 new.

The proceedings in common law systems, also referred to as Anglo-Saxon, are adversarial.  Defense lawyers must zealously represent their clients within the contours of the rules of procedure and evidence, and to the maximum extent permitted by the professional code of conduct and ethics.  Robustly raising every conceivable doubt by every conceivable acceptable means is expected, even at the expense of the truth.  As such, it is not unethical or legally (or even morally) inappropriate for a defense lawyer during cross-examination to attempt to impeach, discredit, disarm or confuse a witness on matters about which the defense lawyer knows the witness to have told or to be telling the truth.7See Monroe H. Freedman, Getting Honest about Client’s Perjury 21 Geo. J. Legal Ethics (2008) 133, addressing the defense lawyer’s obligation to put the prosecution to its proof in every way, and present every valid legal and factual defense that may benefit their clients, short of knowingly presenting false evidence or making false representations to the court. For an excellent treatment on the distinct roles and functions of defense lawyers and prosecutors, see Daniel Markovits, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age 79-90, 92-95, 103-110 (Princeton University Press 2008). The duty of a defense lawyer in that system is to put the prosecutor to his/her proof and burden.  This is because in common law proceedings the trier of fact (jury or judge) is not required actively to seek the truth; it need only decide whether the evidence produced during the proceedings substantiates the charges and proves beyond a reasonable doubt the elements of the charged crimes.

Common law systems are party driven. The judge does not actively engage in questioning the witnesses in order to get to the truth. While judges control the flow of the proceedings and in some instances may question witnesses (primarily for clarification purposes), they are not engaged in a truth-seeking mission.  It is not their task to search for evidence or witnesses believed to be essential for establishing the truth, guilt or innocence, though, in some common law systems, allowances are made, giving judges discrete latitude in calling witness, questioning witnesses and commenting on the evidence.  For instance, some jurisdictions permit judges to call witnesses ex proprio motu or at the suggestion of the parties8In the US, Federal Rules of Evidence (“FRE”), Rule 614(a); In the UK, see Regina v. Cleghorn, (1967) 2 Q.B. 584, stating that the discretion to call witnesses proprio motu should be used sparingly and with the sole purpose of ensuring that justice be served, so as not to interfere with the discretion of counsel to mount its case. (including expert witnesses),9FRE Rule 706. raise defenses on behalf of the accused and instruct the jury to consider the defense as an alternative to any other defenses raised by the accused,10See UK cases Regina v. Johnson, [1989] 1 W.L.R. 740; Regina v. Newell, [1989] Crim. L.R. 906, addressing the judge’s duty to instruct the jury on alternative defenses.  See also Sean Doran, Alternative Defences: The “Invisible burden” on the Trial Judge, Crim. L.R. 878 (Dec. 1991) (hereinafter “Doran”), describing the duty on the judge as an “invisible burden” to put before the jury a possible defense which has not been raised by either party. and sum up or comment on the evidence for the jury’s consideration in its deliberation.11See UK cases Regina v. Brower, [1995] Crim. L.R. 746; Regina v. Evans, (1990) 91 Crim. App.R. 173; Regina v. Sparrow, [1973] 1 W.L.R. 488, addressing the judge’s duty to sum up and, if necessary, comment on the evidence.  See also Stephen A. Saltzburg, The Unnecessarily Expanding Role of the American Trial Judge, 64(1) Virginia L. Rev. 1-81 (1978), (hereinafter “Saltzburg”) disagreeing with the judge’s authority to sum up and to comment upon evidence and urging that trial judges be granted only the most limited authority to call and to interrogate witnesses.

Some US jurists have expressed mixed views on these discretionary powers entrusted to judges.  Two excellent examples are from US Federal Judge Jack B. Weinstein, author of a seminal treatise on evidence, and US Supreme Court Justice Felix Frankfurter.

Judge Weinstein:

A great deal of the dispute about the matter is caused by differences between rhetoric affirming the court’s power and the practice where the judge tends to act as an impartial arbiter in our adversarial system.  Much difficulty would be avoided if it were clearly understood that the court trying a case should have, and does have, no views as to which side ought to win, or how much a plaintiff in a civil case should recover, or whether a defendant in a criminal case – unless and until he is convicted – should be punished.

If a reasonable juror could find either way, the juror is entitled not to have the court throw its enormous prestige in to the scale on the side of one litigant or the other.12Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence: Commentary on Rules of Evidence for the United States Courts and State Courts, § 107[1], at 8, as cited in Saltzburg, p. 41.

Justice Frankfurter:

Federal judges are not referees at prize fights, but functionaries of justice…. As such, they have a duty of initiative to see that the issues are determined within the scope of the pleadings, not left to counsel’s chosen argument…. [A] Federal judge … has the power to call and examine witnesses to elicit the truth…. He surely has the duty to do so before resorting to guesswork in establishing liability for fault.13Johnson v. United States, 333 U.S. 46, 54 (1948), Frankfurter J. dissenting, (internal citations omitted).

Arguably, even in common law systems there may be an element of truth seeking, though it is the parties (prosecution and defense lawyers) who “uncover” the truth by thoroughly testing and examining the evidence within strict evidentiary and procedural boundaries.

Common law judges tend to be overly cautious in attempting to avoid any appearance of favoring one party over the other.  Speaking on the issue of seeking the truth in common law trials, Judge Frank starkly observes:

What influences juries, courts seldom know. Indeed, most courts (including the federal courts) not only do not diligently seek such knowledge but have a general policy of deliberate unwillingness to learn–and usually seal up the only possible sources from which they could learn–what occurred in the jury-room. As we recently said, per Judge Learned Hand, this policy stems from awareness that, were the full truth disclosed, it is doubtful whether more than 1% of verdicts could stand.14United States v. Farina, 184 F.2d 18, 21 (2d Cir. 1950), Frank J. dissenting.

Any attempts by the judges to seek the truth – be it by investigating for evidence or extensively questioning witnesses during the trial (beyond asking the occasional question for clarification) – would, at a minimum, give rise to an appearance of bias or lack of judicial independence.

“The adversarial system trusts the parties to properly and honestly present their side of the argument, and expects that the truth will emerge from a robust presentation of each side’s case.”15Felicity Nagorcka, Michael Stanton & Michael Wilson, Stranded between Partisanship and the Truth? A Comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice, 29 Melb. U. L. Rev. 448, 465-66 (2005) (hereinafter “Nagorcka”). This system requires the parties to be active: to investigate and gather evidence, and to select the witnesses and documents they believe are relevant to their respective cases, subject to judicial scrutiny and approval.

The common law prosecutor is not merely adversarial; he/she also has a duty to do justice, which trumps the adversarial imperative to prevail. Or as the US Supreme Court put it:

The role of a prosecutor is to see that justice is done. “It is as much [a prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”16Connick v. Thompson, 563 U.S. 51, 71 (U.S. 2011) (internal citations omitted), quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L. Ed. 1314 (1935).

Defense lawyers are responsible for consulting with their client, developing a theory of the case (proposed factual findings and legal conclusions), deciding whether to question prosecution witnesses at trial, selecting any witnesses from whom they may wish to adduce evidence, examining witnesses, and presenting arguments at trial.

Defense lawyers are permitted to engage the witnesses: searching for witnesses, talking to them, taking statements, collecting material from them, summarizing their expected testimony, arranging for their voluntary participation (and compelling them through a court summons if necessary and when possible) and proofing them in preparation of their anticipated evidence.  Indeed, in the US system, defense lawyers have a duty to investigate, and failure to engage in such reasonable inquiry may result in counsel being found ineffective.

…[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.17Strickland v. Washington, 466 U.S. 668, 690-691 (U.S. 1984).

Considering that in the party driven system through the questioning of witnesses the examiner is advancing his/her theory of the case, proofing (preparing, not coaching) is essential to focus the witnesses on the nature and relevant areas of the examination. Without thoroughly discussing and analyzing the testimony with the witness, the examiner will not be able to control the narrative and make the points essential for presenting the defense’s case.

At trial, defense lawyers are permitted to cross-examine prosecution witnesses (mostly through leading questions) to challenge or diminish the prosecution’s case and thus advance the defense’s case.  Defense lawyers are in control of presenting their cases during the proceedings in the manner they see fit, constrained only by the parameters of the applicable rules of procedure and evidence.

Through motion practice, defense lawyers attempt to structure the contours of the applicable law and control the admission of evidence.  During the pre-trial stage of the proceedings, all sorts of objectionable issues can be raised, such as challenges to the jurisdiction of the court, the form and substance of the indictment, the admissibility of certain evidence, etc.  During the trial proceedings, defense lawyers must be vigilant to raise all necessary and reasonable objections.

Ultimately, the goal is to have a trial record from which defense lawyers can argue their case.  The defense lawyer cannot satisfy his/her due diligence duty and protect the client’s fair trial rights without ensuring that errors committed during the pre-trial and trial stage of the proceedings are preserved on the record.  Preserving errors during the pre-trial and trial proceedings for the purpose of appeal is one of the most important due diligence obligations of a defense lawyer.  The consequences of not having a record can be devastating.  On appeal, the court will be limited to the pre-trial and trial record consisting of all submissions (motions, responses, replies, etc.), court rulings (orders, decisions, and judgments), hearings, the trial itself (transcripts), all exhibits admitted in evidence, and exhibits found inadmissible.  Failing to timely raise and address an issue, and failing to ensure that it is reflected in the record, prevents a higher court of review from considering any errors in law or fact.  As Stanley Neustadt puts it: “For us [US / common law] appellate lawyers, the eight most embittering words in the lexicon are this issue is not preserved for appellate review.”18Professor Stanley Neustadter’s presentation at the Benjamin N. Cardozo School of Law Intensive Trial Advocacy Program in January 2014 (emphasis added). Professor Neustadter is the Director of the Criminal Appeals Clinic at the Benjamin N. Cardozo School of Law.

Thus, in order to make a record, defense lawyers must conduct a thorough investigation to search for evidence, make all necessary written and oral submissions related to the law and facts, and address all relevant evidentiary objections in a timely and coherent fashion.  With a record that has properly preserved all errors committed during the pre-trial and trial proceedings, a defense lawyer just might be able to resurrect a client’s case on appeal.

Burden(s) of proof and evidentiary standards

In common law systems, the term “burden of proof” can have two different meanings.

The primary meaning refers to the duty of a party to persuade the trier of fact by the end of the case of the truth of certain allegations as presented by the parties.19Mojtaba Kazazi, Burden of Proof and Related Issues: A Study on Evidence Before International Tribunals 22 (Martinus Nijhoff Publishers 1996) (hereinafter “Kazazi”), providing general comparative observations regarding the burden and standard of proof in common and civil law systems. This is also called the “burden of persuasion” or “the risk of non-persuasion.”20Kazazi, p. 22. See also Juliane Kokott, The Burden of Proof in Comparative and International Human Rights Law: Civil and Common Law Approaches With Special Reference to the American and German Legal Systems 2-9 (Martinus Nijhoff Publishers 1998) (hereinafter “Kokott”), clarifying the terminology and comparing the German and American systems with regard to the issue of burden of proof. The prosecution always bears the burden of persuasion in establishing the guilt of the accused by proving the charges beyond a reasonable doubt.  This burden of proof remains on the prosecution throughout the trial.  Defense lawyers can remain silent during the trial proceedings yet still argue that the prosecution failed to prove the charges beyond a reasonable doubt.  Presumed innocent throughout the trial, the accused is under no obligation to present any evidence, save for when raising a defense, and no adverse inferences can be drawn from a failure to advance any evidence contrary to what is presented by the prosecution or from remaining silent. In some common law jurisdictions, such as the United Kingdom (“UK”), an adverse inference may be drawn from the accused’s silence at trial,21Section 35 of the UK Criminal Justice and Public Order Act 1994. however, the judge must tell the jury that the burden of proof remains upon the prosecution throughout, remind the jury of the accused’s right to remain silent, and that an inference from failure to give evidence cannot on its own prove guilt.22R v. Cowan [1996] Q.B. 373, setting out the steps that a court must take prior to a section 35 adverse inference being drawn. Quoting from the European Court on Human Rights in Saunders v. United Kingdom Stefan Trechsel elegantly notes:

“The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal trial seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence.…”  It is the task of the prosecution to prove the guilt of the accused.  The latter thus does not have to establish his or her innocence.  A fortiori there is not the slightest duty on the defence to contribute to a conviction of, for that matter, to contribute in any way to the proceedings.23Stefan Trechsel, Human Rights in Criminal Proceedings 348 (Oxford 2005), quoting from Saunders v. United Kingdom, App. No 19187/91, 17 September 1996, para. 68.

The secondary meaning of the term “burden of proof” relates to the duty of going forward in producing evidence to support an allegation of fact, also referred to as the “burden of production,”24Kazazi, p. 22. or “evidential burden.”25Colin Tapper, Cross and Tapper on Evidence 121-23 (Butterworth, 8th ed. 1995), discussing the “evidential burden,” as a party’s obligation to show that there is sufficient evidence to establish the existence or non-existence of a fact in issue. This burden applies to the prosecution as well as the accused when advancing a defense, such as an affirmative defense: “an excuse or justification peculiarly within the knowledge of the accused, on which he can fairly be required to adduce supporting evidence.”26See Model Penal Code of the American Law Institute (1985), § 1.12(3)(c).  An affirmative defense is an acknowledgment: I did it, but for a legally justifiable reason. Examples of affirmative defenses include self-defense, defense of others, and insanity.27See Stephen M. Everhart, Putting a Burden of Production on the Defendant before Admitting Evidence that Someone Else Committed the Crime Charged: Is It Constitutional? 76(2) Neb. L. Rev. 272, 288-292 (1997), analyzing various affirmative defenses and alibi.

When advancing a defense, the defense lawyers must present the requisite amount of evidence before the burden of proof would shift to the prosecution to disprove the defense beyond a reasonable doubt.  For example, once the defense lawyers have produced the requisite amount of evidence for advancing self-defense, thus discharging their burden of production, the judge must instruct the jury to consider the affirmative defense of self-defense as a complete justification and return a verdict of not guilty unless the prosecution disproves self-defense beyond a reasonable doubt.

LevelsProofThe amount of evidence that the defense lawyers must adduce to discharge the burden of production in relation to raising a defense can vary significantly, from as little as a scintilla of evidence to proof beyond a reasonable doubt, depending on the nature of the defense and the jurisdiction.  In some states in the US, in advancing a mental disability as a defense “if there is ‘some evidence’ supporting the defendant’s claim of mental disability, he is entitled to have that the issue submitted to the jury…. [T]here can be no sharp quantitative or qualitative definition of ‘some evidence.’ Certainly it means more than a scintilla, yet, of course, the amount need not be so substantial as to require, if uncontroverted, a directed verdict of acquittal.”28See McDonald v. United States, 312 F.2d 847, 849 (D. C. Cir. 1962). By contrast, in raising an insanity defense, the US Supreme Court in Leland v. Oregon held that a state’s requirement to establish the defense of insanity beyond a reasonable doubt was not a violation of due process rights.29Leland v. Oregon, 343 U.S. 790, 791 (1952). The US Supreme Court cited Henry Weihofen, Insanity as a Defense in Criminal Law30Henry Weihofen, Insanity as a Defense in Criminal Law (New York: The Commonwealth Fund 1933) (hereinafter “Weihofen”). listing twelve states as requiring proof by a preponderance of the evidence, four as requiring proof “to the satisfaction of the jury,” two which combine these formula, one where by statute the defense must be “clearly proved to the reasonable satisfaction of the jury,” one where it has been held that the jury must “believe” the defendant insane, and one where the quantum of proof has not been stated by the court of last resort, but which appears to follow the preponderance rule.31Leland v. Oregon, 343 U.S. 790, 791 (1952), citing Weihofen, p. 148-151, 172-200. Twenty-two states, including Oregon, were mentioned as holding that the accused has the burden of proving insanity, at least by a preponderance of evidence.32Leland v. Oregon, 343 U.S. 790, 791 (1952), citing John H. Wigmore, A Treatise on the Anglo-American System of Evidence vol. 9 (3rd ed., Boston: Little Brown 7 Co. 1940 and Supp. 1951), § 2501. Notwithstanding Leland v. Oregon, the majority of states in the US require a much lower evidentiary threshold.33Requiring preponderance of evidence, see Lackey v. State, 615 So. 2d 145, 151-152 (Ala. Crim. App. 1992); McCarlo v. State, 677 P.2d 1268, 1272 (Alaska App. 1984); Diaz v. State, 508 A.2d 861, 863 (Del. 1986); Flowers v. State, 353 So. 2d 1259, 1270 (Fla. App. 1978); Johnson v. State, 209 Ga. App. 514, 516, 433 S.E.2d 717, 719 (1993); Requiring “clear and convincing evidence,” see Mitchell v. State, 323 Ark. 116, 120, 913 S.W.2d 264, 266 (1996); Ariz. Rule Crim. Proc. 11.5 (1987 and Supp. 1995).

In advancing self-defense, some US states require evidence which “when viewed in the light most favorable to the accused, might arguably lead a juror to entertain a reasonable doubt as to the defendant’s guilt.”34Lamont v. State, 934 P.2d 774, 777 (1997). See also Frazier v. Weatherholtz, 572 F.2d 994, 995 (4th Cir, 1978), holding that the burden of proving self-defense is on the accused, “but only to the extent of raising in the minds of the jury a reasonable doubt.” Other US states require the defense lawyers to establish self-defense and other defenses by a “preponderance of evidence.”35See Martin v. Ohio, 480 US 228 (1987), requiring the proof by a preponderance of evidence for self-defense; Patterson v. New York, 432 U.S. 197 (1977), requiring the proof by a preponderance of evidence for the affirmative defense of extreme emotional distress. This standard, also referred to as the “balance of probabilities,” is satisfied if there is a greater than fifty percent chance that the proposition is true.36Miller v. Minister of Pensions [1947] 2 All ER 372. For further discussion on the standards and burdens of proof see, generally, James P. McBaine, Burden of Proof: Degrees of Belief, 32(3) Cal. L. Rev. 242 (1944); William Trickett, Preponderance of Evidence and Reasonable Doubt, 10 Forum 75, 86 (1905-1906); Jefferson Ingram, Criminal Evidence 73 (Routledge, 2014); Ronald Bacigal, Criminal Law and Procedure: An Overview 13 (Cengage Learning, 2008).

For an excellent, albeit dated research and analysis of US jurisprudence in relation to the burden of proof practices and the differing standards for raising defenses, I highly recommend George P. Fletcher’s article Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases.37George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77(5) Yale L. J. 880 (1968) (hereinafter “Fletcher”).   In his comparative study of the US and Germany, Fletcher analyzed the German system of criminal liability, explaining that defensive issues, such as self-defense or insanity, are considered as “unavoidable steps in the process of determining guilt.”38Fletcher, p. 916. He concluded that all claims which have a bearing on the accused’s guilt or innocence are an integral consideration in the overall evaluation of the case.  As a result, the prosecution bears the risk of residual doubt on all of the issues.39Fletcher, p. 917.

Similarly, in the UK, judges are not required to leave to the jury “every facile mouthing of some easy phrase of excuse” submitted by the accused,40Bratty v. Attorney-General for Northern Ireland, [1963] AC 386, 416-417. nor claims for which there is no “scintilla of evidence.”41DPP v. Walker¸[1974] 1 W.L.R. 1090, 1094. See, generally, Richard May, Criminal Evidence mn. 4-08 – 4-46 (Sweet & Maxwell, 3rd ed. 1995). For instance, when raising a defense of insanity, the defense lawyers have to establish it by a preponderance of evidence.42Sodeman v. Regem, [1936] W. N. 190, requiring the proof on the balance of probabilities (preponderance of evidence) to establish the defense of insanity.  See also Timothy H. Jones, Insanity, Automatism, and the Burden of Proof on the Accused 11 L. Q. Rev. 475 (1995), criticizing this standard as applied to the defense of insanity as conflicting with the presumption of innocence. When a defense is properly raised, the burden is on the prosecution to disprove it beyond a reasonable doubt, and not on the defense lawyers to prove it.  In the UK, this rule “applies to any defence, justification or explanation put forward by the defendant, e.g. alibi, accident, automatism or duress.”43Richard May, Criminal Evidence mn. 4-06 (Sweet & Maxwell, 3rd ed. 1995), relying, inter alia, on Woolmington v. DPP [1935] AC 462; Mancini v. DPP [1942] A.C 1; Regina v. Moon [1969] 1 W. L. R 1705; Regina v. Williams [1987] 3 All E. R. 411.

In the UK, a range of cases provide that “if there is a reasonable possibility that, on one interpretation of the evidence, the accused may have a defence which has not been expressly raised by either party (usually … for tactical reasons), it is the judge’s duty to put that defence before the jury.”44Doran, p. 878 and n. 3, referring to Hopper [1915] 2 K.B. 431; Mancini v. D.P.P. [1942] A.C.1, Porritt (1961) 45 Cr.App.R. 348, Kachikwu (1965) 52 Cr.App.R. 538 and Cascoe [1970] 2 All E.R. 833; Johnson (1989) 90 Cr.App.R. 148 and Newell [1989] Crim.L.R. 906. Although this contrasts with the traditionally passive role of the judge in the proceedings, the underlying rationale is that “[i]n a Court of justice it is for the Court, with the assistance of the jury, to arrive at the true view of the facts without paying too much attention to whether a particular witness is called by one side or the other.”45Doran, p. 886.  Sean Doran describes this duty as the “invisible burden” on the trial judge to instruct the jury on an alternative defense if this defense becomes apparent from the evidence presented at trial, even if it contradicts the defense lawyers’ theory of the case.  He points out that by doing so, the judge may effectively deprive “the accused of the ‘all-or-nothing’ chance which the adversary system permits him to take.…:

[The judge’s] duty should be regarded not in a negative way as means of salvaging the truth from the otherwise blinkered structure of the adversary trial, but as a positive and integral part of that trial format.  In other words, it is simply a manifestation of the judge’s responsibility to keep the law above the interests of the respective parties.46Doran, p. 888.

The burden of production is distinct from and should not be confused with the burden of persuasion imposed upon the prosecution.  As I’ve noted, once the defense lawyers have provided sufficient evidence on a specific defense they raised, the burden of proof is on the prosecution to disprove that defense beyond a reasonable doubt; the judge must instruct the jury to consider whether the prosecution has disproved beyond a reasonable doubt the claimed defense before finding a guilty verdict.

Distinguishing between these two meanings is important and necessary due to the distribution of functions between the judge and the jury.  Generally, the trial judge decides questions of law, whereas the jury decides questions of fact.  This explains why a jury is referred to as the fact-finder (also know as the trier of fact), a term that also applies to judges when conducting a non-jury trial, known as a bench trial.47See Rule 23 of the US Federal Rules of Criminal Procedure: “If the defendant is entitled to a jury trial, the trial must be by jury unless: (1) the defendant waives a jury trial in writing; (2) the government consents; and (3) the court approves.”

It is within this division of labor between the judge (as the law-giver) and the jury (as the fact-finder) that the judge throughout the trial proceedings will instruct the jury on its obligations and the various rights afforded to the accused.  For example, the US Court of Appeals for the Third Circuit’s Model Criminal Jury Instructions, § 1.02 (2012) reads:

Under our system of justice, the role of the jury is to find the facts of the case based on the evidence presented in the trial. You must decide the facts only from the evidence presented to you in this trial.

From the evidence that you will hear and see in court, you will decide what the facts are and then apply to those facts the law that I will give to you in my final instructions. That is how you will reach your verdict. …

I play no part in finding the facts. You should not take anything I may say or do during the trial as indicating what I think of the evidence or about what your verdict should be. My role is to make whatever legal decisions have to be made during the course of the trial and to explain to you the legal principles that must guide you in your decisions.48The US Court of Appeals for the Third Circuit, Model Criminal Jury Instructions (2012) available here.

For the accused to fully enjoy all of his/her rights there must be a proper screening and assessing of the evidence.  Most jurors have little experience in assessing the evidence objectively, and many of them have prejudices that are not easy to suppress.  Where the jury is the fact-finder, the judge must ensure that the evidence is properly screened so that jurors are not exposed to irrelevant, prejudicial, or unreliable evidence.  Since this is a party driven system, the parties (prosecution and defense lawyers) are responsible for making timely applications for evidence to be either accepted or rejected by the judge.  To control and help the jury to assess the evidence objectively, the common law criminal procedure sets separate and detailed rules of evidence.  Applying these elaborate rules of evidence (though brief in text, there is wide-ranging jurisprudence and commentary on their application), the judge determines what evidence is admissible and what evidence is not. The basic test for the admissibility of evidence is that it be relevant, authentic, and reliable. Once the judge determines that the evidence is admissible and is worth considering, the jury will need to assess how much weight, if any, to give the evidence.

The trial judge instructs the jurors throughout the trial on their obligations and the various rights afforded to the accused.  The judge makes it explicitly clear in these instructions that the jurors should use their own judgment and common sense, and that they should give the benefit of the doubt to the accused, implicitly invoking the in dubio pro reo principle.  If there is any reasonable doubt from the totality of the evidence, the jury must acquit the accused.

Richard Uviller cogently describes the process of instructing the jury throughout the trial and how the reasonable doubt instruction is to be appreciated at the end of the trial:

Jurors are invariably instructed by the judge – usually several times – that they have the exclusive responsibility to find the facts; they are then told at length just how they are to go about finding those facts.  Addressing the raw data accumulated during the trial (actually, the evidence is hardly raw, having been refined by evidentiary and constitutional filtration), the judge will enjoin the jury to use their ordinary faculties of judgment and common sense.  Jurors are told how to weigh credibility, taking into account the demeanor of witnesses on the stand, tone of voice, eye movements, body language, attitude – all the various sorts of unconscious communications that often betray the liar and confirm the account of the truthful.  The jury is told that the credibility of a witness may be attacked (“impeached”) by evidence of bias, by contradiction of evidence from another source, or by inconsistency between the witness’s trial testimony and some statement on the same matter previously made by the same witness.  They are instructed that the defendant (if he testifies in his own behalf) and, in some instances, co-conspirators are biased as a matter of law because of their inherent stake in the outcome.  Jurors are also instructed that other witnesses may be biased in fact for any one of a number of reasons, among them a personal or professional relationship to the defendant or victim or some personal interest in the outcome.  At the same time, the jurors are reminded that even a biased witness may tell the truth.  In general, they are advised they may either discard the discredited portions of an impeached witness’s testimony and retain the rest, or they may disregard it all as the suspect product of an incredible source. Although they are enjoined to use their own “judgment” on these matters, they are warned not to “speculate.”  They should find the facts on the basis of the supporting evidence, they are instructed, but they are also told that they may consider the lack of evidence along with the evidence on a point.49Richard Uviller, Acquitting the Guilty: Two Case Studies on Jury Misgivings and the Misunderstood Standard of Proof, 2 Crim. L. F. 1, 18-19 (1990) (hereinafter “Uviller”).

As can be seen, the jury is not merely instructed (charged) at the end of the trial with the reasonable doubt instruction (however defined). The trial judge cautions the jury throughout the trial on how to consider the evidence presented under the appropriate standard.  At the end of the trial the jury is reminded that it has the exclusive responsibility to assess the evidence.  It is for the jury to determine whether, and to what extent, all elements of all charged crimes have been proven to the standard of proof beyond a reasonable doubt – a standard that for all intents and purposes amounts to near certainty (since few things in life can be proved with absolute certainty).50Fletcher, p. 933.

When the jurors are told to apply the reasonable doubt standard in evaluating the evidence, they are told nothing about whether they must apply some objective, majoritarian perspective in evaluating doubt or to apply their own individualistic, subjective evaluations.  Uviller has insightfully described the tension between the “objective” and “subjective” interpretations of the reasonable doubt standard.  He explains that the “objective” and “subjective” are two possible ways of understanding the reasonable doubt standard:

Under the objective understanding, if juror A concedes that juror B has a persistent, good faith doubt based on the evidence, then juror A must vote “not guilty” even though she does not share juror B’s doubt. Even if jurors conclude only that some imaginary, conscientious juror might entertain some doubt concerning the defendant’s guilt, the objective view would acknowledge a reasonable doubt in the case and require the jury to acquit though none of them actually doubts the defendant’s guilt.

Under the subjective interpretation, the question is first whether an individual juror, carefully weighing all the evidence and giving due consideration to the views of fellow jurors, personally doubts the guilt of the defendant. If this step produces a subjective sense of doubt in a juror’s mind, the juror must ask himself the next question: whether the doubt is reasonable. Under this subjective reading, if a juror personally has no reasonable doubt, then notwithstanding the imperfections in the proof that might give others reason for doubt, the juror should vote “guilty.”51Uviller, p. 30.

Uviller correctly argues that the subjective understanding is the right one: doubt is an individual matter; jurors must not abandon their personal conclusions or vote against their judgment.52Id., p. 32.

Robert C. Power (relying on observations by US Federal Circuit Court Judges Patricia Wald and Jerome Frank), argues:

Experience with the reasonable doubt standard, as well as common sense, support the realist criticism that judges and academics overstate the importance of legal doctrine. Our modern and somewhat jaded “realistic” view is that jurors generally disregard the judge’s instructions and just do what they want to do. Judge Wald writes that “the reasonable doubt standard is essentially irrelevant to the everyday workings of the criminal justice system.” This irrelevance results not only from the use of guilty pleas and prosecutorial discretion, but also because juries do not apply the standard. For example, “few judges … believe that every jury slavishly and precisely follows the beyond-a-reasonable-doubt standard in deciding guilt or innocence.” Judge Wald’s connection to the realist view is cemented by her affirmation of Judge Frank’s comment that “were the full truth declared [sic] [as to what goes on in the jury room] it is doubtful whether more than one percent of verdicts could stand.”53Robert C. Power, Reasonable and Other Doubts: The Problem of Jury Instructions, 67 Tenn. L. Rev. 45, 48 (1999-2000) (hereinafter “Power”), citing Patricia M. Wald Guilty Beyond a Reasonable Doubt: A Norm Gives Way to the Numbers, 1993(1) U. Chi. Legal F. 101, 101 (1993).

But what about when the factfinder in a criminal case is the judge, to what extent does it alter the dynamics of the trial proceedings?   Is some US states, such as Pennsylvania and Illinois, it is a common phenomenon.  Effectively, there is no real difference in the assessment of the evidence, though arguably, the judicial fact-finder may be less prone to succumb to passion or prejudice, as some lay jurors are occasionally likely to do.  Here are some illuminating quotes:

The function of a judge trying a case without a jury is twofold: [the judge] is a finder of fact, as well as an arbiter of the law. The responsibility is burdensome. But the task becomes too great when we require a judge who has heard evidence of guilt, to objectively and coldly assess a distinct issue as to the voluntariness of the confession. Objectivity cannot be guaranteed, and reliability must be questioned. Jackson properly construed, prohibits the finder of fact from passing on the voluntariness of a confession since its decision as to voluntariness could be colored by evidence as to guilt.54United States ex rel. Spears v. Rundle, 268 F.Supp. 691, 695 (E.D.Pa.1967), aff’d. 405 F.2d 1037 (3d Cir. 1969) (per curiam).


[W]e should not rely upon the fiction of a judicial blind side.… I do not conclude that there should be a wholesale application of the rules of evidence as they apply to jury trials to judges sitting as the fact-finder. To do so would deprecate a judge’s long years of study and experience, and his dedication to the ends of justice and fairness. However, to assume qualities of restraint and logic in a judge which we do not assume in a layman does not mean that we should overlook that judges are subject to human nature, or that we should not continuously seek to assure fairness in cases where judges act as the fact-finder.55Commonwealth v. Goodman, 221 Pa.Super. 73, 79-80, 289 A.2d 186, 189 (Spaulding J. dissenting) (1972).

But see

Under both the Illinois and the Federal Rules of Evidence, an expert may base an opinion on facts that are “made known to the expert at or before the hearing,” but such reliance does not constitute admissible evidence of this underlying information. Ill. Rule Evid. 703; Fed. Rule Evid. 703. Accordingly, in jury trials, both Illinois and federal law generally bar an expert from disclosing such inadmissible evidence. In bench trials, however, both the [2235]  Illinois and the Federal Rules place no restriction on the revelation of such information to thefactfinder. When the judge sits as the trier of fact, it is presumed that the judge will understand the limited reason for the disclosure of the underlying inadmissible information and will not rely on that information for any improper purpose. As we have noted, “[i]n bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions.” Harris v. Rivera, 454 U.S. 339, 346, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981) (per curiam). There is a “well-established presumption” that “the judge [has] adhered to basic rules of procedure,” when the judge is acting as a factfinder. Id., at 346-347, 102 S. Ct. 460, 70 L. Ed. 2d 530 (emphasis added). See also Gentile v. State Bar of Nev., 501 U.S. 1030, 1078, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991) (Rehnquist, C. J., dissenting).56Williams v. Illinois, 132 S. Ct. 2221, 2234-2235, 183 L. Ed. 2d 89, 106, 2012 U.S. LEXIS 4658, *34-35, 80 U.S.L.W. 4434, 83 A.L.R. Fed. 2d 649, 23 Fla. L. Weekly Fed. S 355, 2012 WL 2202981 (U.S. 2012) (italics in original).

In sum

In the party driven adversarial proceedings of common law systems, the standard of proof applied by the trier of fact in determining whether the prosecution has proved all the elements of the charges is the reasonable doubt standard.  Defense lawyers are not required to present any evidence, save for when raising a defense, and, even then, the evidence need not rise to the reasonable doubt standard.  Defense lawyers can remain silent during the trial proceedings yet still argue that the prosecution failed to prove the charges beyond a reasonable doubt.  An accused’s silence or lack of presentation of evidence does not factor into the equation as to whether the prosecution has proved its case beyond a reasonable doubt.  Nonetheless, it is worth stressing the duty of due diligence and the necessity of preserving errors in the record for the appeal.  If the record is not perfected, the issue is waived.  A failure to make the record may strip the accused (client) of a chance to overturn a conviction (or preserve an acquittal, since double jeopardy at international and internationalized hybrid courts does not attach until all appeals are exhausted).  As one judge fittingly put it: God may know, but the record must show.57Jones v. Vacco, 126 F.3d 408, 417 (2d Cir. 1997).

As for the standard of proof, as shown in the previous post, there is no definitive definition on what amounts to reasonable doubt that is universally applied in the common law systems.  Defining reasonable doubt without injecting terms into the definition that also require definition remains a pesky conundrum.  Reasonable doubt definitions are ubiquitously elusive, containing terms that require explanations or further defining, and with every attempt to explain or define these terms, further attempts are made to illustrate a term’s meaning by way of analogy or example.  All of these attempts to define, explain, and analogize the definition of reasonable doubt has often led appeal courts to question the accuracy, clarity, and legality of the definitions ascribed to the simple instruction that is required to be given: the prosecution solely bears the burden of proving each element of each charge beyond a reasonable doubt.  In his dissent in United States v. Guglielmini, Judge Moore aptly muses:

Some day the courts may recognize the utter impossibility of conveying metaphysical concepts to a jury and approve a simple charge, if charge be needed at all, such as “reasonable doubt is a doubt based on reason.” Such simplicity, of course, might well be anathema to the Law – hence, clarity (or probably greater confusion) is supplied by … clichés….58United States v. Guglielmini, 384 F. 2d 602, 608 (2d Cir. 1967).

Though I have merely scratched the surface in describing the party driven adversarial proceedings of common law systems, it should be clear that defense lawyers are not spectators at any phases of the proceedings.  They cannot take for granted that the prosecution will search for and properly collect exculpatory evidence.  They cannot assume that the judges will raise and preserve errors for the accused.  And they cannot assume that an adequate record will be made without making the requisite effort to do so in a timely fashion.

In the upcoming Part III-B, I will provide an overview of civil law based systems.  We will see that defense lawyers in these systems can be relatively passive because the investigative authorities (judge or prosecutor, depending on the system) are exclusively responsible for conducting the investigation and collecting the evidence objectively and comprehensively and without passion or prejudice – in theory, at least – while the trial judges can be depended on – again, in theory – to conduct the questioning that will get as close to the truth as possible.

Posts in this series: 

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof

Historical Aspects of the Standard of Proof Beyond a Reasonable Doubt & The Principle of In Dubio Pro Reo

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-A – Common Law

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-B – Civil Law

Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part IV


About Author



Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including pre-trial, trial, and appellate advocacy.

One thought on “Making Sense of the Standard & Burden of Proof in Hybrid Courts: Reflections on the Common Law & Civil Law Approaches to Proof, Part III-A – Common Law”

  1. While certain kinds of arguments, such as logical syllogisms, require mathematical or strictly logical proofs, the standard for evidence to meet the burden of proof is usually determined by context and community standards and conventions.

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