Constitutional Law of Constitutional Law of Criminal EvidenceCriminal Evidence

22ndnd Session Session

ByBy

Mian Ali Mian Ali HaiderHaider

"Nobody can be ignorant, that belief is susceptible of different degrees"Nobody can be ignorant, that belief is susceptible of different degreesof strength, or intensity." Jeremy Benthamof strength, or intensity." Jeremy Bentham

BURDEN OF PROOF IN CRIMINAL CASESBURDEN OF PROOF IN CRIMINAL CASES Historical BackgroundHistorical Background

The principle governing the phrase “the burden of proof” has The principle governing the phrase “the burden of proof” has been traced to Paulus , a Roman jurist, in the second century A.D. been traced to Paulus , a Roman jurist, in the second century A.D.

Based on Latin maxim Based on Latin maxim ei qui affirmat non ei qui negat ei qui affirmat non ei qui negat incumbit probatioincumbit probatio  : he who asserts a matter must prove it, but he : he who asserts a matter must prove it, but he who denies it need not prove it. who denies it need not prove it.

For Thayer , the phrase “the burden of proof” has two meanings: For Thayer , the phrase “the burden of proof” has two meanings:

(i) the risk of not persuading the jury and (i) the risk of not persuading the jury and

(ii) the duty of going forward with the evidence to satisfy (ii) the duty of going forward with the evidence to satisfy the the judge. judge.

The latter meaning is frequently called “the presumption of innocence”, a The latter meaning is frequently called “the presumption of innocence”, a presumption recognised as a cornerstone of the Law of evidence and presumption recognised as a cornerstone of the Law of evidence and protected by Article 6 (2) of the Convention for the Protection of Human protected by Article 6 (2) of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention)Rights and Fundamental Freedoms 1950 (the Convention)

BURDEN OF PROOF IN BURDEN OF PROOF IN CRIMINAL CASESCRIMINAL CASES

Articles 117 to 129 of Qanun-e-Shahadat (1984 Order)Articles 117 to 129 of Qanun-e-Shahadat (1984 Order)117. Burden of proof 117. Burden of proof

118. On whom burden of proof lies 118. On whom burden of proof lies

119. Burden of proof as to particular fact 119. Burden of proof as to particular fact

120. Burden of proving fact to be proved to make evidence admissible 120. Burden of proving fact to be proved to make evidence admissible

121. Burden of proving that case of accused comes within exceptions 121. Burden of proving that case of accused comes within exceptions

122. Burden of proving fact especially within knowledge 122. Burden of proving fact especially within knowledge

123. Burden of proving death of person known to have been alive within thirty years123. 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 years124. 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 125. Burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent and agent

126. Burden of proof as to ownership 126. Burden of proof as to ownership

127. Proof of good faith in transactions where one party is in relation of active confidence127. Proof of good faith in transactions where one party is in relation of active confidence

128. Birth during marriage conclusive proof of legitimacy128. Birth during marriage conclusive proof of legitimacy

129. Court may presume existence of certain facts ...129. Court may presume existence of certain facts ...

BURDEN OF PROOF IN BURDEN OF PROOF IN CRIMINAL CASESCRIMINAL CASES

THERE ARE TWO BURDENS OF PROOFTHERE ARE TWO BURDENS OF PROOF: :

(i)(i) the the legal legal (i.e. fixed) or persuasive or ultimate burden of proof; and (i.e. fixed) or persuasive or ultimate burden of proof; and

(ii)(ii) the the evidential evidential or provisional or tactical burden – “the burden of introducing or provisional or tactical burden – “the burden of introducing enough evidence to be placed before the jury or other tribunal of fact.” enough evidence to be placed before the jury or other tribunal of fact.” 

(iii)(iii) The burdens of proof of issues / charge are the same in civil and criminal The burdens of proof of issues / charge are the same in civil and criminal proceedings proceedings

(iv)(iv) But the issues are determined differently and are subject to other factorsBut the issues are determined differently and are subject to other factors

For instance, in criminal proceedings, the burden of proof rests on For instance, in criminal proceedings, the burden of proof rests on the the prosecution and never changes throughout the trial; prosecution and never changes throughout the trial;

(i)(i) In civil proceedings the burden of proof of an issue is either on the plaintiff 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. or the defendant and rests on him throughout the trial.

The moot point is whether the burden of proof shifts?The moot point is whether the burden of proof shifts?

Shifting the burdenShifting the burden Judges and textwriters are divided on the shifting of the burden Judges and textwriters are divided on the shifting of the burden

of proof. of proof. There is high authority for the proposition that the burden of There is high authority for the proposition that the burden of

proof never shifts and also for the proposition that, in some proof never shifts and also for the proposition that, in some cases, the burden shifts. cases, the burden shifts. 

The former proposition refers to legal or ultimate burden of The former proposition refers to legal or ultimate burden of proof in criminal proceedings which requires that the proof in criminal proceedings which requires that the prosecution must prove that the accused is guilty of the alleged prosecution must prove that the accused is guilty of the alleged crime beyond reasonable doubt; in which case, the burden crime beyond reasonable doubt; in which case, the burden remains on the prosecution throughout the criminal proceedings. remains on the prosecution throughout the criminal proceedings.

Similarly in civil proceedings, where the burden of proof is on Similarly in civil proceedings, where the burden of proof is on the plaintiff or the defendant, the burden remains on him the plaintiff or the defendant, the burden remains on him throughout the trialthroughout the trial

Shifting the burdenShifting the burden There are some cases where on the true construction of an enactment it 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 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 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. 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 In such a case, the burden of proof shifts to the defendant as in R v EdwardsR v Edwards  . .  There are also cases where negligence is alleged in civil proceedings, the mere There are also cases where negligence is alleged in civil proceedings, the mere

fact that the accident occurred may amount to prima facie evidence of fact that the accident occurred may amount to prima facie evidence of negligence. negligence. 

This state of affairs is described by the maxim This state of affairs is described by the maxim Res ipsa loquiturRes ipsa loquitur  (the thing (the thing speaks for itself). speaks for itself).

In case of collision at sea where the defendants' ship collided in daylight with a 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 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 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 and proving with regard to everyone of them that the result could not have been avoided. avoided.

In all the three instances, the burden of proof is described as shifting tactically.In all the three instances, the burden of proof is described as shifting tactically.

Classic Example of confusionClassic Example of confusion In a criminal case it is always the duty of the prosecution to prove the guilt In a criminal case it is always the duty of the prosecution to prove the guilt

of the accused of the accused Beyond Reasonable DoubtBeyond Reasonable Doubt. . In In Woolmington v DPPWoolmington v DPP  the accused was convicted of murder. His defence the accused was convicted of murder. His defence

was accident. Swift J in his summing-up said:was accident. Swift J in his summing-up said:

““Once it is shown to the jury that somebody has died Once it is shown to the jury that somebody has died through the act of another, through the act of another, that is presumed to be murderthat is presumed to be murder, , unless the person who has been guilty of the act which causes unless the person who has been guilty of the act which causes the death the death can satisfy the jury that what happened was can satisfy the jury that what happened was something lesssomething less, something which , something which must be alleviatedmust be alleviated, , something which something which must be reduced to a charge of must be reduced to a charge of manslaughtermanslaughter, as something which , as something which was accidentalwas accidental, or , or something something which could be justifiedwhich could be justified.”.”

Classic Example of confusionClassic Example of confusion

The accused appealed unsuccessfully to the Court of Appeal The accused appealed unsuccessfully to the Court of Appeal but successfully to the House of Lords. Viscount Sankey LC but successfully to the House of Lords. Viscount Sankey LC said:said:

““Where Where intentintent is an is an ingredient of a crimeingredient of a crime there there is is no onus on the defendantno onus on the defendant to prove that the act to prove that the act alleged was accidental. Throughout the web of the alleged was accidental. Throughout the web of the English Criminal Law one English Criminal Law one golden threadgolden thread is always to is always to be seen, that it is the be seen, that it is the duty of the prosecution to prove duty of the prosecution to prove the prisoner's guilt subject to what I have already said the prisoner's guilt subject to what I have already said as to the defence of insanity and subject to any as to the defence of insanity and subject to any statutory exceptionstatutory exception.”.”

Golden ThreadGolden Thread Two exceptions to the “golden thread” or the so-Two exceptions to the “golden thread” or the so-

called called Woolmington Woolmington principle principle were instantiated by Viscount Stanley LC in 1935, namely, insanity and were instantiated by Viscount Stanley LC in 1935, namely, insanity and

any (express) statutory exception (i.e. where a statute places the legal any (express) statutory exception (i.e. where a statute places the legal burden of proof on the defendant).burden of proof on the defendant).

Insanity Insanity . The first exception to the . The first exception to the WoolmingtonWoolmington  principle is insanity as principle is insanity as defined under the defined under the M'Naghten ruleM'Naghten rule. Where the accused pleads insanity, he . Where the accused pleads insanity, he bears the persuasive burden which is discharged on a balance of bears the persuasive burden which is discharged on a balance of probabilities. probabilities.

Where prosecution raises the defence, they must prove it beyond Where prosecution raises the defence, they must prove it beyond reasonable doubt.reasonable doubt.

To clarify, where the accused's defence involves the pleading of issues To clarify, where the accused's defence involves the pleading of issues such as non-insane automatism , provocation , self-defence , duress , and such as non-insane automatism , provocation , self-defence , duress , and belief in lawful authority and mechanical defect , he bears the evidential belief in lawful authority and mechanical defect , he bears the evidential burden and the onus of disproving them rests on the prosecution.burden and the onus of disproving them rests on the prosecution.

Standard of ProofStandard of Proof A distinction is made between criminal cases in which the A distinction is made between criminal cases in which the

evidential burden but not the legal burden on a particular issue evidential burden but not the legal burden on a particular issue such as provocation or self-defence is bourne by the accused and such as provocation or self-defence is bourne by the accused and criminal cases where the evidential burden is bourne by the criminal cases where the evidential burden is bourne by the prosecution. prosecution.

In case of the accused, such evidence must suggest a reasonable In case of the accused, such evidence must suggest a reasonable possibility. In case of the prosecution, “such evidence, if possibility. In case of the prosecution, “such evidence, if believed, and is left uncontradicted be accepted by the court as a believed, and is left uncontradicted be accepted by the court as a proof”. The standard of proof required is “proof beyond proof”. The standard of proof required is “proof beyond reasonable doubt”.reasonable doubt”.

What is then What is then "Beyond Reasonable Doubt". ?"Beyond Reasonable Doubt". ? What is What is ““Presumption of InnocencePresumption of Innocence””

The Origins of Reasonable Doubt: Theological The Origins of Reasonable Doubt: Theological Roots of the Criminal TrialRoots of the Criminal Trial

““Beyond a reasonable doubt” is a key phrase in any criminal Beyond a reasonable doubt” is a key phrase in any criminal justice systemjustice system

the term has become fraught with uncertainty of meaning as the term has become fraught with uncertainty of meaning as judges, lawyers, and jurors struggle with vague definitions of judges, lawyers, and jurors struggle with vague definitions of what makes a defendant guilty “beyond a reasonable doubt.”what makes a defendant guilty “beyond a reasonable doubt.”

‘‘Beyond a reasonable doubt’ is among the most majestic Beyond a reasonable doubt’ is among the most majestic phrases in our law; but in practice it is vexingly difficult to phrases in our law; but in practice it is vexingly difficult to interpret and apply. There is always some possible uncertainty interpret and apply. There is always some possible uncertainty about any case. Exactly what kind of uncertainty counts as a about any case. Exactly what kind of uncertainty counts as a legal ‘doubt’? Exactly when are legal ‘doubts’ about the guilt legal ‘doubt’? Exactly when are legal ‘doubts’ about the guilt of the accused ‘reasonable’ ones?of the accused ‘reasonable’ ones?

The Origins of Reasonable Doubt: The Origins of Reasonable Doubt: Theological Roots of the Criminal TrialTheological Roots of the Criminal Trial

Whitman argues that the modern legal system has lost sight of Whitman argues that the modern legal system has lost sight of the original purpose of the reasonable doubt rule. the original purpose of the reasonable doubt rule.

According to Whitman, the idea of “reasonable doubt” was According to Whitman, the idea of “reasonable doubt” was originally not a rule of law at all, but a rule of theology.originally not a rule of law at all, but a rule of theology.

Its original function was not to protect the accused, but to Its original function was not to protect the accused, but to protect the souls of jurors. protect the souls of jurors.

The doctrine, he explains, was created to make conviction The doctrine, he explains, was created to make conviction easier—jurors who feared losing their own salvation in easier—jurors who feared losing their own salvation in convicting an innocent defendant were assured that they would convicting an innocent defendant were assured that they would be safe from damnation as long as their doubts were not be safe from damnation as long as their doubts were not “reasonable.”“reasonable.”

The Origins of Reasonable Doubt: The Origins of Reasonable Doubt: Theological Roots of the Criminal TrialTheological Roots of the Criminal Trial

Today, these theological concerns have vanished. Yet even in the absence of Today, these theological concerns have vanished. Yet even in the absence of the psychological context of moral peril in which our ancestors lived, the 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 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 for defendants—a means of making conviction harder, rather than easier for jurors. jurors.

No longer seen as a means of moral comfort for jurors, the rule is now a type 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 of exhortation against easy conviction, a warning to jurors that they must have moral certainty in their decision. Whitman writes:have moral certainty in their decision. Whitman writes:

The problems of our world are not the problems of the eighteenth The problems of our world are not the problems of the eighteenth century, or the thirteenth century, or the fourth century. Jurors today bring 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 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 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 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 instruct jurors that their job is to ‘confirm’ an obvious truth. The very task of the trial has changed in a modern urban world.the trial has changed in a modern urban world.

Reasonable DoubtReasonable Doubt The requirement of proof beyond a reasonable doubt in criminal cases was 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 given constitutional status by the Supreme Court in 1970, in the case of In re In re WinshipWinship,,

which held that the "Due Process Clause protects the accused against which held that the "Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." necessary to constitute the crime with which he is charged."

The holding restated the general understanding of the rule governing proof in The holding restated the general understanding of the rule governing proof in a criminal case. The reasonable doubt requirement had been recognized in a criminal case. The reasonable doubt requirement had been recognized in Anglo-American law since atleast 1798.Anglo-American law since atleast 1798.

It is a term often used, probably pretty well understood, but not easily 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 defined. It is not mere possible doubt; because everything relating to human affairs, and depending on . . . evidence, is open to some possible or imaginary 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 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 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 that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the chargethe truth of the charge

Reasonable DoubtReasonable Doubt

Reasonable doubt – its meaning:Reasonable doubt – its meaning: State vs. Manzoor Ahmed – PLD 1966 SC 662 State vs. Manzoor Ahmed – PLD 1966 SC 662 State vs. Mushtaq Ahmed – PLD 1973 SC 418, 430 State vs. Mushtaq Ahmed – PLD 1973 SC 418, 430

Reasonable doubts should be reasonable not imaginaryReasonable doubts should be reasonable not imaginary It is not a question of lawIt is not a question of law Essentially a question of human judgment by a prudent Essentially a question of human judgment by a prudent

person to be found in each caseperson to be found in each case Same is done according to day to day affairsSame is done according to day to day affairs It is anithesis of a haphazard approach or reaching a fitful It is anithesis of a haphazard approach or reaching a fitful

decision in a casedecision in a case

Prevalent PractisePrevalent Practise ““The level of certainty a court must have to find accused guilty of a The level of certainty a court must have to find accused guilty of a

crime. A real doubt, based upon crime. A real doubt, based upon reasonreason and and common sensecommon sense after after careful careful and impartial considerationand impartial consideration of all the evidence, or lack of evidence, in a of all the evidence, or lack of evidence, in a case.;case.;

““Proof beyond a reasonable doubt, therefore, is proof of such a Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing convincing character that you would be willing to rely and act upon it to rely and act upon it without hesitation.without hesitation.

However, it does not mean an absolute certainty.However, it does not mean an absolute certainty. This is the This is the standard of proof standard of proof that the prosecution must meetthat the prosecution must meet Court must be able to rest assured that the accused committed the crime Court must be able to rest assured that the accused committed the crime

without any real possibility of error; essentially, there must be without any real possibility of error; essentially, there must be nono room room for doubt in the prosecution’s case against the accused (i.e. no other for doubt in the prosecution’s case against the accused (i.e. no other suspects, tight timeline, strong evidence and credible testimony, etc.)suspects, tight timeline, strong evidence and credible testimony, etc.)

PRESUMPTION OF PRESUMPTION OF INNOCENCEINNOCENCE

The Presumption of Innocence is a long standing The Presumption of Innocence is a long standing principle at the heart of any criminal justice system.principle at the heart of any criminal justice system.

That can be traced to the 18th Century, the right for That can be traced to the 18th Century, the right for those accused of crimes to be presumed innocent is those accused of crimes to be presumed innocent is enshrined in the Universal Declaration of Human enshrined in the Universal Declaration of Human RightsRights

The European Convention on Human RightsThe European Convention on Human Rights Also enacted domestically in the U.K., Pakistan., Also enacted domestically in the U.K., Pakistan.,

U.S.A. U.S.A. typically only apply when a person has been ‘charged typically only apply when a person has been ‘charged

with a criminal offence’ with a criminal offence’

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

Reading MaterialReading Material Khan Asfandyar Wali – PLD 2001 SC 607, 911 Khan Asfandyar Wali – PLD 2001 SC 607, 911 R v Hunt – 1987 1 All ER 1R v Hunt – 1987 1 All ER 1 Safdar Ali – PLD 1953 FC 93 Safdar Ali – PLD 1953 FC 93 Nadeem ul Haq – 1985 SCMR 510 Nadeem ul Haq – 1985 SCMR 510 Rab Nawaz – PLD 1994 SC 858Rab Nawaz – PLD 1994 SC 858 State vs. Manzoor Ahmed – PLD 1966 SC 662 State vs. Manzoor Ahmed – PLD 1966 SC 662 State vs. Mushtaq Ahmed – PLD 1973 SC 418, 430State vs. Mushtaq Ahmed – PLD 1973 SC 418, 430

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