a. Overview of burden of proof and standard of proof in criminal cases

a. Overview of burden of proof and standard of proof in criminal cases

Burden of Proof 

The “burden of proof” refers to which party has to bring in evidence to prove a certain proposition, whereas the “standard of proof” regulates how much evidence would be required before the Courts to consider a proposition proved. In general, it means the degree of probability for a certain fact to be proved to be true.

Under the common law and Article 87 of the Basic Law, the presumption of innocence serves as the foundation of the central rule of criminal law. Consequently, the general principle in a criminal trial is that the prosecution has to bear the burden of proof in proving all the elements of an offence.

The prosecution, in effect, has to do the following two things:

1. To prove that all the elements of crime exist; and
2. To disprove and dispel all defences raised by the defendant.

This general principle is subject to exceptions. For instance, when a defendant needs to rebut a statutory presumption, or prove a statutory defence or exception to liability, the burden of proof may be shifted to the defendant. That said, the ultimate burden of proof still rests on the prosecution, and the prosecution has an opportunity to disprove those defences once the defendant has successfully raised the defence.

Standard of Proof