What is the burden of proof and how it works


This is an in-depth guide about the burden of proof. In this guide you will learn

  • What is a burden of proof
  • How burden of proof works
  • Types of the burden of proof
  • The burden of proof in civil cases
  • The burden of proof in criminal cases
  • etc

Let’s get started



    What is a burden of proof?

    The burden of proof refers to the duty which lies on the parties to the case, either to establish a case or to establish the existence of the truthfulness of certain facts in a particular issue. The burden of proof hinges on the principle that, he who asserts a matter must prove it, but he who denies it need not prove it; expressed by the Latin maxim ‘ei qui affirmat non ei qui negat incumbit probatio’

    In the case of STATE OF MAHARASHTRA V WASUDEO RAM CHANDRA KAIDALWAR AIR 1981 SC 1186 it was stated;

    “burden of proof means two different things. It means sometimes that a party is required to prove an allegation before judgment can be given in its favor; it also means that on a contested issue one of the two contending parties have to introduce evidence”

    Types of the burden of proof

    In evidence law, there are two types of burden of proof i.e Legal or persuasive burden of proof and Evidential burden of proof

    The legal or persuasive burden of proof

    The persuasive burden of proof is an obligation on one party to convince the tribunal or the court of truth of some proposition of fact that is in issue and which is vital to his case. The general rule is that he who asserts must prove, whether the allegation is an affirmative or a negative one, and not he who denies. The party failing to discharge this burden will fail in the whole or some part of the litigation.

     The evidential burden of proof

    The evidential burden of proof is an obligation that shifts between parties over the course of hearing or trial, this burden is not constant, it shifts as soon as the parties adduce sufficient evidence to raise the presumption in his favor. It is sometimes known as a provisional or tactical burden of proof.

    Abbott, C.J had this to say in the case of R V BURDETT [1820] 4 B. & Ald. 95, at p.161 in as far as the evidential burden is concerned;

    No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him;

     Standard of Proof

    Standard of proof is the level of proof required in a legal action to convince the court that the given proposition is true. In criminal cases, the standard of proof is beyond reasonable doubt while in civil cases; the standard of proof is on the balance of probabilities or the preponderance of probabilities.

    The burden of proof in civil cases

    The burden of proof in a civil case lies to the plaintiff or an applicant who is required by law to prove his case on the balance of probabilities that his or her allegation is true. This standard of proof is met if there is the likelihood that the proposition is true is more likely than it not being true. Effectively, the standard is satisfied if there is more than a 50% chance that the proposition is true.

    In the case of MILLER V MINISTER OF PENSION [1947] 2 ALL ER 372 at 373-374 Lord Denning described it simply as “probable than not”.

    If the evidence is such that the court can say we think it more probable than not, the burden is discharged. But if the probabilities are equal, it is not.

    The preponderance of probability or balance of probability has to be understood differently from the mathematical context of the term “probability”

    In the case of J S (A MINOR) [1981] Fam 22 it was stated;

    The concept of ‘probability' in the legal sense is certainly different from the mathematical concept; indeed, it is rare to find a situation in which the two usages co-exist although, when they do, the mathematical probability has to be taken into the assessment of probability in the legal sense and given its appropriate weight


     The burden of proof in criminal cases

    The burden of proof in a criminal case lies to the republic/prosecution side to prove to court beyond reasonable doubt that the accused person is guilty. The phrase beyond a reasonable doubt means that the proposition must be proved to the extent that there is no reasonable doubt in the mind of a reasonable person. There can still be a doubt but only to the extent that it would be unreasonable to assume falsity of the preposition.

    In the case of WOOLMINGTON V D.P.P [1935] A.C.462 Lord Sankey, L.C had this to say;

    “…it is the duty of the prosecution to prove the prisoner’s guilt,…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”

    That is what is termed as the “golden thread” or the “Woolmington principle.”

    In the case of WALTERS V R [1969] 2 A.C 26 the court stated that reasonable doubt is quality and kind of doubt which when you are dealing with matters of importance in your own affairs, you allow to influence you in one way or the other.

    The extent of the burden on the prosecution is great while on part of the accused is only to cast that doubt on reasonable probabilities.

    The prosecution cannot simply rely on the weakness of the defense case to prove their own case.

    It is also fatal to the proceedings where the court proceeds to convict by relying on the weakness of the accused defense.

    Exceptions to Burden of proof in criminal cases

    Not in all criminal cases, the burden of proof lies on the prosecution, the exceptions are;

    • In the criminal dispute where the issue is concerning the property which is suspected to be stolen and where the doctrine of recent possession is at issue.

    In the case of MARUZUKU HAMISI v REPUBLIC [1997] TLR 1it was stated that;

    “Once the accused has been found in possession of the property which may reasonably be suspected of having been stolen or unlawfully obtained, then the burden shifts on him of satisfying the Court as to how he came by the same. But the burden is not a heavy one”

    • Where the accused raises a defense of alibi, insanity, intoxication, mistake of fact, etc

    The Court of Appeal in Majuto Samson v R, Crim. Appeal No.61 of 2002 stated that

    ….In regard to insanity, it is settled law that the burden of proving insanity is on the accused on a balance of probabilities and not merely to raise a reasonable doubt as to the sanity of the accused.

    • Where the offense is one of strict liability
    • In immigration cases, where the issue is on the citizenship of the applicant

    Generally, when such burden shifts on the accused person, it is not heavy as that placed on the Prosecution.


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