11. Burden and Standard of Proof
Legal and evidential burdens, the prosecution's general burden and defence exceptions and standards.
How to study for BSB Criminal Litigation
Prepare for a closed-book assessment by linking every power, gateway, burden, procedure and appellate route to its place in the criminal case.
Core concepts
Concept 1
The evidential burden concerns whether enough evidence exists to raise an issue; the legal burden determines who must persuade the tribunal.
Exam cue: Identify the proposition and ask separately who must raise evidence and who must prove it.
Concept 2
The prosecution ordinarily bears the legal burden of proving guilt so that the tribunal is sure.
Exam cue: Distinguish a defence that creates reasonable doubt from one carrying a reverse legal burden.
Concept 3
Where legislation or law places a legal burden on the defence, it is generally discharged on the balance of probabilities, subject to compatibility and interpretation.
Exam cue: State the applicable standard only after locating the legal burden.
Risk pitfalls and guardrails
Assuming the defendant must prove innocence once the prosecution establishes a prima facie case.
Guardrail: Do not import a current-law change into the assessment merely because it post-dates the syllabus cut-off; use the latest BSB-issued syllabus or amendment for exam scope.
Confusing an evidential burden with proof on the balance of probabilities.
Guardrail: Do not import a current-law change into the assessment merely because it post-dates the syllabus cut-off; use the latest BSB-issued syllabus or amendment for exam scope.
Using civil language for the prosecution's criminal standard.
Guardrail: Do not import a current-law change into the assessment merely because it post-dates the syllabus cut-off; use the latest BSB-issued syllabus or amendment for exam scope.
Memory anchors
Evidential burden
Produce enough evidence to make the issue fit for consideration.
Legal burden
Persuade the tribunal of fact of the proposition.
Prosecution standard
The tribunal must be sure of guilt.
Defence legal burden
Where law places it on the defence, the usual standard is the balance of probabilities.
Issue by issue
Locate burden and standard for each element, defence and exception separately.
Checkpoint rule
Do the check-up only after you can summarize each concept in one sentence and identify one dangerous pitfall from memory.
Knowledge Check (after reading)
Short check-up to confirm understanding of this module.
Check-up Questions
Who ordinarily bears the legal burden of proving the elements of a criminal offence?
How should a jury be directed on the prosecution's standard of proof?
Answer all questions to submit.
Next step personalized recommendations
Continue learning
Move forward only after this module is stable.
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