Constitutional Law of Criminal Evidence 2 nd Session

Constitutional Law of Criminal Evidence 2 nd Session By Mian Ali Haider

"Nobody can be ignorant, that belief is susceptible of different degrees of strength, or intensity. " Jeremy Bentham BURDEN OF PROOF IN CRIMINAL CASES n n Historical Background The principle governing the phrase “the burden of proof” has been traced to Paulus , a Roman jurist, in the second century A. D. Based on Latin maxim ei qui affirmat non ei qui negat incumbit probatio : he who asserts a matter must prove it, but he n n who denies it need not prove it. For Thayer , the phrase “the burden of proof” has two meanings: (i) the risk of not persuading the jury and (ii) the duty of going forward with the evidence to satisfy the judge. The latter meaning is frequently called “the presumption of innocence”, a presumption recognised as a cornerstone of the Law of evidence and protected by Article 6 (2) of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention)

BURDEN OF PROOF IN CRIMINAL CASES n Articles 117 to 129 of Qanun-e-Shahadat (1984 Order) 117. Burden of proof 118. On whom burden of proof lies 119. Burden of proof as to particular fact 120. Burden of proving fact to be proved to make evidence admissible 121. Burden of proving that case of accused comes within exceptions 122. Burden of proving fact especially within knowledge 123. Burden of proving death of person known to have been alive within thirty years 124. Burden of proving that person is alive who has not been heard of for seven years 125. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent 126. Burden of proof as to ownership 127. Proof of good faith in transactions where one party is in relation of active confidence 128. Birth during marriage conclusive proof of legitimacy 129. Court may presume existence of certain facts. . .

BURDEN OF PROOF IN CRIMINAL CASES n THERE ARE TWO BURDENS OF PROOF: the legal (i. e. fixed) or persuasive or ultimate burden of proof; and (ii) the evidential or provisional or tactical burden – “the burden of introducing enough evidence to be placed before the jury or other tribunal of fact. ” (iii) The burdens of proof of issues / charge are the same in civil and criminal proceedings (iv) But the issues are determined differently and are subject to other factors For instance, in criminal proceedings, the burden of proof rests on the prosecution and never changes throughout the trial; (i) In civil proceedings the burden of proof of an issue is either on the plaintiff or the defendant and rests on him throughout the trial. The moot point is whether the burden of proof shifts? (i)

Shifting the burden n n Judges and textwriters are divided on the shifting of the burden of proof. There is high authority for the proposition that the burden of proof never shifts and also for the proposition that, in some cases, the burden shifts. The former proposition refers to legal or ultimate burden of proof in criminal proceedings which requires that the prosecution must prove that the accused is guilty of the alleged crime beyond reasonable doubt; in which case, the burden remains on the prosecution throughout the criminal proceedings. Similarly in civil proceedings, where the burden of proof is on the plaintiff or the defendant, the burden remains on him throughout the trial

Shifting the burden n n n There are some cases where on the true construction of an enactment it prohibited the doing of a certain act, save in special circumstances, and it is not for the prosecution to prove a prima facie case of lack of excuse or qualification but for the defendant to prove that he was entitled to do so. In such a case, the burden of proof shifts to the defendant as in R v Edwards. There also cases where negligence is alleged in civil proceedings, the mere fact that the accident occurred may amount to prima facie evidence of negligence. This state of affairs is described by the maxim Res ipsa loquitur (the thing speaks for itself). In case of collision at sea where the defendants' ship collided in daylight with a ship at anchor , the burden lay on the defendants to prove inevitable accident either by proving the cause of the accident or by enumerating possible causes and proving with regard to everyone of them that the result could not have been avoided. In all the three instances, the burden of proof is described as shifting tactically.

Classic Example of confusion n n In a criminal case it is always the duty of the prosecution to prove the guilt of the accused Beyond Reasonable Doubt. In Woolmington v DPP the accused was convicted of murder. His defence was accident. Swift J in his summing-up said: “Once it is shown to the jury that somebody has died through the act of another, that is presumed to be murder, unless the person who has been guilty of the act which causes the death can satisfy the jury that what happened was something less, something which must be alleviated, something which must be reduced to a charge of manslaughter, as something which was accidental, or something which could be justified. ”

Classic Example of confusion n The accused appealed unsuccessfully to the Court of Appeal but successfully to the House of Lords. Viscount Sankey LC said: “Where intent is an ingredient of a crime there is no onus on the defendant to prove that the act alleged was accidental. Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject to any statutory exception. ”

Golden Thread n n n Two exceptions to the “golden thread” or the socalled Woolmington principle were instantiated by Viscount Stanley LC in 1935, namely, insanity and any (express) statutory exception (i. e. where a statute places the legal burden of proof on the defendant). Insanity. The first exception to the Woolmington principle is insanity as defined under the M'Naghten rule. Where the accused pleads insanity, he bears the persuasive burden which is discharged on a balance of probabilities. Where prosecution raises the defence, they must prove it beyond reasonable doubt. To clarify, where the accused's defence involves the pleading of issues such as non-insane automatism , provocation , self-defence , duress , and belief in lawful authority and mechanical defect , he bears the evidential burden and the onus of disproving them rests on the prosecution.

Standard of Proof n n A distinction is made between criminal cases in which the evidential burden but not the legal burden on a particular issue such as provocation or self-defence is bourne by the accused and criminal cases where the evidential burden is bourne by the prosecution. In case of the accused, such evidence must suggest a reasonable possibility. In case of the prosecution, “such evidence, if believed, and is left uncontradicted be accepted by the court as a proof”. The standard of proof required is “proof beyond reasonable doubt”. What is then "Beyond Reasonable Doubt". ? What is “Presumption of Innocence”

The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial n n n “Beyond a reasonable doubt” is a key phrase in any criminal justice system the term has become fraught with uncertainty of meaning as judges, lawyers, and jurors struggle with vague definitions of what makes a defendant guilty “beyond a reasonable doubt. ” ‘Beyond a reasonable doubt’ is among the most majestic phrases in our law; but in practice it is vexingly difficult to interpret and apply. There is always some possible uncertainty about any case. Exactly what kind of uncertainty counts as a legal ‘doubt’? Exactly when are legal ‘doubts’ about the guilt of the accused ‘reasonable’ ones?

The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial n n Whitman argues that the modern legal system has lost sight of the original purpose of the reasonable doubt rule. According to Whitman, the idea of “reasonable doubt” was originally not a rule of law at all, but a rule of theology. Its original function was not to protect the accused, but to protect the souls of jurors. The doctrine, he explains, was created to make conviction easier—jurors who feared losing their own salvation in convicting an innocent defendant were assured that they would be safe from damnation as long as their doubts were not “reasonable. ”

The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial n n Today, these theological concerns have vanished. Yet even in the absence of the psychological context of moral peril in which our ancestors lived, the reasonable doubt rule has survived, but has come to be viewed as a protection for defendants—a means of making conviction harder, rather than easier for jurors. No longer seen as a means of moral comfort for jurors, the rule is now a type of exhortation against easy conviction, a warning to jurors that they must have moral certainty in their decision. Whitman writes: The problems of our world are not the problems of the eighteenth century, or the thirteenth century, or the fourth century. Jurors today bring relatively few Christian qualms to the process of judgment, and we have little need for a rule intended to coax them into convicting. Moreover, they rarely face cases in which there is no real factual uncertainty. We can no longer instruct jurors that their job is to ‘confirm’ an obvious truth. The very task of the trial has changed in a modern urban world.

Reasonable Doubt n n The requirement of proof beyond a reasonable doubt in criminal cases was given constitutional status by the Supreme Court in 1970, in the case of In re Winship, which held that the "Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. " The holding restated the general understanding of the rule governing proof in a criminal case. The reasonable doubt requirement had been recognized in Anglo-American law since atleast 1798. It is a term often used, probably pretty well understood, but not easily defined. It is not mere possible doubt; because everything relating to human affairs, and depending on. . . evidence, is open to some possible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge

Reasonable Doubt n n n Reasonable doubt – its meaning: State vs. Manzoor Ahmed – PLD 1966 SC 662 State vs. Mushtaq Ahmed – PLD 1973 SC 418, 430 n n n Reasonable doubts should be reasonable not imaginary It is not a question of law Essentially a question of human judgment by a prudent person to be found in each case Same is done according to day affairs It is anithesis of a haphazard approach or reaching a fitful decision in a case

Prevalent Practise n n “The level of certainty a court must have to find accused guilty of a crime. A real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence, or lack of evidence, in a case. ; “Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation. However, it does not mean an absolute certainty. This is the standard of proof that the prosecution must meet Court must be able to rest assured that the accused committed the crime without any real possibility of error; essentially, there must be no room for doubt in the prosecution’s case against the accused (i. e. no other suspects, tight timeline, strong evidence and credible testimony, etc. )

PRESUMPTION OF INNOCENCE n n n The Presumption of Innocence is a long standing principle at the heart of any criminal justice system. That can be traced to the 18 th Century, the right for those accused of crimes to be presumed innocent is enshrined in the Universal Declaration of Human Rights The European Convention on Human Rights Also enacted domestically in the U. K. , Pakistan. , U. S. A. typically only apply when a person has been ‘charged with a criminal offence’

Reading Material n n n n n Sang - (1979) 2 All ER 1223 Wolf - 338 US 25: 93 L Ed 1782 (1949) Russell – 411 US 423: 36 L Ed 2 d 366 (1973) Miranda – 384 US 436: 16 L Ed 2 d 694 (1966) Mason - (1988) 1 WLR 139 CA Khan Asfandyar Wali PLD 2001 SC 607, 911 R v Hunt (1987) 1 All ER 1 Mapp – 6 L Ed 2 d 1081 Zakaullah – 1991 SCMR 2126, 2133; Muhammad Ibrahim – 1980 CLC 296 Abdul Qudus – PLD 1984 FSC 69 Woolmington – 1935 AC 462 Basir-ud-Din Sarkar – AIR 1927 Cal. 966 Rab Nawaz – PLD 1994 SC 858 Ghulam Muhammad - 1980 P. Cr. LJ 1039 State vs. Farman – PLD 1995 SC 1, 11 Burden may shift – Manzoor Ahmed PLD 1966 SC 664, 680

Reading Material n Khan Asfandyar Wali – PLD 2001 SC 607, 911 R v Hunt – 1987 1 All ER 1 Safdar Ali – PLD 1953 FC 93 Nadeem ul Haq – 1985 SCMR 510 Rab Nawaz – PLD 1994 SC 858 State vs. Manzoor Ahmed – PLD 1966 SC 662 State vs. Mushtaq Ahmed – PLD 1973 SC 418, 430 n ALL OTHER ARTICLES AND BOOKS GIVEN TO YOU IN FOLDER n n n