DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM,

A.P., INDIA

PROJECT TITLE:

ONUS PROBANDI

SUBJECT:

LEGAL LANGUAGE

NAME OF THE FACULTY:

Pr0f. ARUNA KAMMILA

NAME OF THE CANDIDATE:

SUMANTH. D

ROLL NUMBER:

2018LLB120

SEMESTER:

2nd SEMESTER

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 ACKNOWLEDGMENT:

I am highly indebted t0 m y H0n’ble Legal Language Pr0fess0r,

Aruna Kammila, f0r giving me a w0nderful 0pp0rtunity t0 w0rk 0n the
t0pic: “Onus Probandi”, and it is because 0f her excellent kn0wledge,
experience and guidance, this pr0ject is made with great interest and
eff0rt. I w0uld als0 like t0 thank my seni0rs wh0 have guided my n0vice
kn0wledge 0f d0ing research 0n such significant t0pic. I w0uld als0 take
this as an 0pp0rtunity t0 thank m parents f0r their supp0rt at all times. I
express my sincere gratitude t0 each and every pers0n wh0 have guided
and suggested me while c0nducting my research w0rk.

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 CONTENTS

1. ACKNOWLEDGMENT……………………………………………………………2
2. ABSTRACT …………………………………………………………….…….……4
3. INTRODUCTION……………………………………………………………….….5
4. LEGAL STANDARDS FOR BURDEN OF PROOF………………………………………………….……..7
5. STANDARD OF PROOF IN UNITED KINGDOM………………………………………………….……11
6. OTHER STANDARDS FOR PRESENTING CASES OR DRFENCES……………………………….12
7. FAILURE OF PROOF………………………………………………………………………………………….….14
8. PRESUMPTION OF INNOCENCE………………………………………………16
9. CONFLICT BETWEEN BURDEN OF PROOF AND PRESUMPTION
OF INNOCENCE………………………………………………………………….17

10. CONCLUSION……………………………………………………………………18
11. BIBLIOGRAPHY…………………………………………………………..……..18

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 ABSTRACT

Subject: Legal Language

Topic: Onus Pr0bandi
Introduction:
The 0bligati0n t0 pr0ve an asserti0n 0r allegati0n that 0ne makes the burden 0f pr00f.
Generally, a party wh0 alleges an affirmative p0siti0n has t0 pr0ve it. It is als0 a general rule
that 0nus pr0bandi lies 0n the party wh0 seeks t0 supp0rt his case by particular fact 0f which
he is supp0sed t0 be c0gnizant. H0wever, when law presumes the affirmative, 0nus pr0bandi
lies 0n the part wh0 denies the fact, t0 pr0ve the negative. F0r example, law presumes the
legitimacy 0f children b0rn in wedl0ck. It is the duty 0f pers0n denying legitimacy t0 pr0ve
the allegati0n. In law, the pr0secuti0n has the burden 0f pr00f because they are the 0ne
asserting s0mething t0 be true whereas the defendant has the presumpti0n 0f inn0cence.
Expecting that a defendant sh0uld pr0ve a negative, as s0me feminists want the law t0 make
male rape suspects t0 d0, is a shifting 0f the burden 0f pr00f fallacy. The 0nus 0f pr00f
resides with the pr0secuti0n. This Principle means that a claimant bears the burden 0f pr00f
f0r the facts which supp0rt his claim, e.g. the facts supp0rting a claim f0r damages, while the
resp0ndent bears the burden 0f pr00f f0r the facts supp0rting his defences, e.g. the defence 0f
disenrichment against a claim f0r rest0rati0n 0f an unjust enrichment.

Objective of the Study:

The aim 0f the study is t0 gather the inf0rmati0n ab0ut the Legal Maxim i.e. 0nus Pr0bandi
and its 0rigin and cases related t0 the subject matter.
Scope of the Study:
I, myself c0nfine t0 the t0pic and search f0r the cases fr0m the 0rigin 0f the t0pic.
Significance of the Study:
0nus Pr0bandi is m0st used legal maxim used in many cases. They must kn0w where it
sh0uld be used and imp0rtance 0f it.
Literature Review:
The primary literature that has been reviewed while g0ing thr0ugh this research t0pic in
b00ks and web s0urces
Research Methodology:
D0ctrinal Research meth0d0l0gy is used.
Hypothesis:
T0 understand everything ab0ut the legal maxim 0nus Pr0bandi.

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INTRODUCTION:

This concept is associated with Julius Paulus Prudentissimus, a Roman jurist who
lived during the 2nd and 3rd centuries AD. His quotes compose a significant part of
the Digesta, a compilation of jurists’ comments which, in turn, was part of the Corpus Juris
Civilis, a Roman body of laws ordered by Justinian I in the 5th century AD. In the Digesta,
you can read the quote “Ei incumbit probatio qui dicit, non qui negat”, usually translated as
“The burden of proof lies upon him who accuses, not him who denies”. This translation,
however, is somewhat debatable, as the current Latin expression for “burden of proof”
is onus probandi. Still, the concept is there, regardless of the choice of words.

Onus (n.)
From the 1640s, from Latin onus "load, burden," figuratively "tax, expense;
trouble, difficulty," from PIE *en-es-"burden" (source of Sanskrit anah "cart, wagon").
Hence, legal Latin onus probandi (1722), literally "burden of proving."
from the original onus probandi, the accusation, “the onus is on you” . Where onus is a
formal or sophisticated way to say "responsibility" or "duty." It sounds a little like the
unrelated word owner, so think about the person with onus as owner of the
responsibility. If the onus is on you to organize a fund raiser, you have to set the whole
thing up. The burden of proof requires the accuser to prove the case against the accused.
In epistemology, the burden of proof (Latin: onus probandi (shorthand for Onus
probandi incumbit ei qui dicit, non ei qui negat) is the obligation on a party in a dispute to
provide sufficient warrant for their position.

Holder of the burden:

When two parties are in a discussion and one makes a claim that the other disputes, the
one who makes the claim typically has a burden of proof to justify or substantiate that claim
especially when it challenges a perceived status quo.

Shifting the burden of proof :

One way in which one would attempt to shift the burden of proof is the argument from
ignorance. It occurs when either a proposition is assumed to be true because it has not yet
been proved false or a proposition is assumed to be false because it has not yet been proved
true. Burden of proof is also an important concept in the public arena of ideas. Once
participants in discourse establish common assumptions, the mechanism of burden of proof
helps to ensure that all parties contribute productively, using relevant arguments.

Proving a negative:

A negative claim is a colloquialism for an affirmative claim that asserts the non-
existence or exclusion of something. There are many proofs that substantiate negative claims
in mathematics, science, and economics including Arrow's impossibility theorem. A negative
claim may or may not exist as a counterpoint to a previous claim. A proof of impossibility or
an evidence of absence argument are typical methods to fulfill the burden of proof for a
negative claim.

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Example:

Internet personality Matt Dillahunty gives the example of a large jar full of gumballs
to illustrate the burden of proof.[10][11] The number of whole gumballs in the jar is either even
or odd, but the degree of personal acceptance or rejection of claims about that characteristic
may vary. We can choose to consider two claims about the situation, given as:

1. The number of gumballs is even.

2. The number of gumballs is odd.
Either claim could be explored separately; however, both claims tautologically take
bearing on the same question. Odd in this case means "not even" and could be described as a
negative claim. Before we have any information about the number of gumballs, we have no
means of checking either of the two claims. When we have no evidence to resolve the
proposition, we may suspend judgment. From a cognitive sense, when no personal preference
toward opposing claims exists, one may be either skeptical of both claims or ambivalent of
both claims. If there is a dispute, the burden of proof falls onto the challenger of the status
quo from the perspective of any given social narrative.[15] If there is no agreeable and
adequate proof of evidence to support a claim, the claim is considered an argument from
ignorance.
Burden of proof (also known as onus probandi in Latin) is the obligation on
somebody presenting a new idea (a claim) to provide evidence to support its truth (a warrant).
Once evidence has been presented, it is up to any opposing "side" to prove the evidence
presented is not adequate. Burdens of proof are key to having logically valid statements: if
claims were accepted without warrants, then every claim could simultaneously be claimed to
be true.

Null hypothesis:

If someone has presented you with an idea and says that the burden of proof is on you
to disprove the idea, work out what the null hypothesis is and then put their evidence for the
idea against it.The person claiming something is possible or has happened needs to produce
evidence to refute the null hypothesis.If they have considerable and well-tested evidence, the
burden of proof may reasonably be considered to be on the person claiming that the evidence
does not hold.

Law:

In law, the prosecution has the burden of proof because they are the one asserting
something to be true whereas the defendant has the presumption of innocence. Expecting that
a defendant should prove a negative, as some feminists want the law to make male rape
suspects to do, is a shifting of the burden of proof fallacy. The onus of proof resides with the
prosecution. A burden of proof is generally (though not always) believed to lie with the
person asserting some idea that deviates from the "normal" idea. It should be noted that this is
not always true -- society's views should not be presumed to be true if questioned, but provide
a useful background on which arguments can be made.Debates frequently descend into
arguments about which side the burden of proof lies with.Denialists of evolution and global
warming have a habit of merely ignoring evidence and claiming that the burden of proof still
rests with the proponents of those concepts.

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LEGAL STANDARDS FOR BURDEN OF PROOF:
1. Some evidence
Per Superintendent v. Hill (1985),1 in order to take away a prisoner's good conduct time for a
disciplinary violation, prison officials need only have "some evidence," i.e., "a modicum of
evidence".
Per Thompson v. City of Louisville (1960)2, the some evidence standard is required to
overrule a jury's finding of guilt in criminal cases.

2. Reasonable indications
"Reasonable indication is substantially lower than probable cause; factors to consider
are those facts and circumstances a prudent investigator would consider, but must include
facts or circumstances indicating a past, current, or impending violation; an objective factual
basis must be present, a mere 'hunch' is insufficient." The reasonable indication standard is
used in interpreting trade law in determining if the United States has been materially injured.
3. Reasonable suspicion
Reasonable suspicion is a low standard of proof to determine whether
a brief investigative stop or search by a police officer or any government agent is warranted.
It is important to note that this stop or search must be brief; its thoroughness is proportional
to, and limited by, the low standard of evidence. A more definite standard of proof
(often probable cause) would be required to justify a more thorough stop/search. In Terry v.
Ohio, 392 U.S. 1 (1968), the Supreme Court ruled that reasonable suspicion requires specific,
articulable, and individualized suspicion that crime is afoot. A mere guess or "hunch" is not
enough to constitute reasonable suspicion.
An investigatory stop is a seizure under the Fourth Amendment. The state must
justify the seizure by showing that the officer conducting the stop had a reasonable articulable
suspicion that criminal activity was afoot. The important point is that officers cannot deprive
a citizen of liberty unless the officer can point to specific facts and circumstances and
inferences therefrom that would amount to a reasonable suspicion. The officer must be
prepared to establish that criminal activity was a logical explanation for what he perceived.
The requirement serves to prevent officers from stopping individuals based merely on
hunches or unfounded suspicions. The purpose of the stop and detention is to investigate to
the extent necessary to confirm or dispel the original suspicion. If the initial confrontation
with the person stopped dispels suspicion of criminal activity the officer must end the
detention and allow the person to go about his or her business. If the investigation confirms
the officer's initial suspicion or reveals evidence that would justify continued detention the
officer may require the person detained to remain at the scene until further investigation is
complete.
4. Reasonable to believe
In Arizona v. Gant (2009),3 the United States Supreme Court defined a new
standard, that of "reasonable to believe." This standard applies only to vehicle searches after

1
Superintendent v. Hill (1985)
2
Thompson v. City of Louisville (1960)
3
Arizona v. Gant (2009)

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the suspect has been placed under arrest. The Court overruled New York v. Belton (1981)4 and
concluded that police officers are allowed to go back and search a vehicle incident to a
suspect's arrest only where it is "reasonable to believe" that there is more evidence in the
vehicle of the crime for which the suspect was arrested.
There is still an ongoing debate as to the exact meaning of this phrase. Some courts have said
it should be a new standard while others have equated it with the "reasonable suspicion" of
the Terry stop. Most courts have agreed it is somewhere less than probable cause.
5. Probable cause:
Probable cause is a relatively low standard of proof, which is used in the United
States to determine whether a search, or an arrest, is warranted. It is also used by grand
juries to determine whether to issue an indictment. In the civil context, this standard is often
used where plaintiffs are seeking a prejudgement remedy.
In the criminal context, the U.S. Supreme Court in United States v.
Sokolow,(1989)5, determined that probable cause requires "a fair probability that contraband
or evidence of a crime will be found" in deciding whether Drug Enforcement
Administration agents had a reason to execute a search. Courts vary when determining what
constitutes a "fair probability": some say 30%, others 40%, others 51%. A good illustration of
this evidence/intrusiveness continuum might be a typical police/citizen interaction. Consider
the following three interactions:

 no level of suspicion required: a consensual encounter between officer and citizen

 reasonable suspicion required: a stop initiated by the officer that would cause a
reasonable person not to feel free to leave
 probable cause required: arrest.

6. Some credible evidence

One of the least reliable standards of proof, this assessment is often used in
administrative law, and often in Child Protective Services (CPS) proceedings in some states.
The "some credible evidence" standard is used as a legal placeholder to bring some
controversy before a trier of fact, and into a legal process. It is on the order of the factual
standard of proof needed to achieve a finding of "probable cause" used in ex parte threshold
determinations needed before a court will issue a search warrant. It is a lower standard of
proof than the "preponderance of the evidence" standard. The standard does not require the
fact-finder to weigh conflicting evidence, and merely requires the investigator or prosecutor
to present the bare minimum of material credible evidence to support the allegations against
the subject, or in support of the allegation; see Valmonte v. Bane, 18 F.3d 992 (2nd Cir.
1994). In some Federal Appellate Circuit Courts, such as the Second Circuit, the "some
credible evidence" standard has been found constitutionally insufficient to protect liberty
interests of the parties in controversy at CPS hearings.
7. Substantial evidence
In some appeals from decisions of administrative agencies, the courts apply a
"substantial evidence" standard of review of the agency's factual findings. In the United

4
New York v. Belton (1981)
5
United States v. Sokolow, 490 U.S. 1 (1989)

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States, for example, if a Social Security Disability Insurance claimant is found "not disabled"
(and, therefore, ineligible for benefits) by an Administrative Law Judge (ALJ) and the
claimant appeals, both the Appeals Council (the body within the Social Security
Administration that hears appeals from decisions of ALJs) and the Federal courts (which, in
this type of case, will normally hear an appeal only after the claimant has exhausted all
administrative remedies) will look to see whether the administrative law judge's decision was
supported by "substantial evidence" or not. Substantial evidence is "more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." This applies to other court decisions. The trier of fact's decision cannot
be baseless.
8. Preponderance of the evidence
Preponderance of the evidence, also known as balance of probabilities, is the
standard required in most civil cases and in family court determinations solely involving
money, such as child support under the Child Support Standards Act, and in child
custody determinations between parties having equal legal rights respecting a child (typically
the parents of a child who are divorced, separated, or otherwise living apart, assuming that
neither has been found unfit). It is also the burden of proof of which the defendant must
prove affirmative defenses or mitigating circumstances in civil or criminal court. In civil
court, aggravating circumstances also only have to be proven by a preponderance of the
evidence, as opposed to beyond reasonable doubt (as they do in criminal court).
The standard is met if the proposition is more likely to be true than not true. The
standard is satisfied if there is greater than fifty percent chance that the proposition is
true. Lord Denning, in Miller v. Minister of Pensions,[12] described it simply as "more
probable than not." Until 1970, this was also the standard used in juvenile court in the United
States.
This is also the standard of proof used when determining eligibility of
unemployment benefits for a former employee accused of losing the job through alleged
misconduct. In most US states, the employer must prove this case with a preponderance of
evidence.
Preponderance of the evidence is the standard of proof used for immunity from
prosecution under Florida's controversial stand-your-ground law. The defense must present
its evidence in a pre-trial hearing, show that the statutory prerequisites have been met, and
then request that the court grant a motion for declaration of immunity. The judge must then
decide from the preponderance of the evidence whether to grant immunity.[14] This is a far
lower burden than "beyond a reasonable doubt," the threshold a prosecutor must meet at any
proceeding criminal trial,[15] but higher than the "probable cause" threshold generally required
for indictment.
9. Clear and convincing evidence
Clear and convincing evidence is a higher level of burden of persuasion than
"preponderance of the evidence". It is employed intra-adjudicatively in administrative court
determinations, as well as in civil and certain criminal procedure in the United States. For
example, a prisoner seeking habeas corpus relief from capital punishment must prove his
factual innocence by clear and convincing evidence.[16]
This standard is used in many types of equity cases, including paternity, persons in
need of supervision, juvenile delinquency, child custody, the probate of both wills and living

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wills, petitions to remove a person from life support ("right to die" cases),[17] and many
similar cases.
Clear and convincing proof means that the evidence presented by a party during
the trial must be highly and substantially more probable to be true than not and the trier of
fact must have a firm belief or conviction in its factuality.[18] In this standard, a greater degree
of believability must be met than the common standard of proof in civil actions, which only
requires that the facts as a threshold be more likely than not to prove the issue for which they
are asserted.
This standard is also known as "clear, convincing, and satisfactory evidence";
"clear, cognizant, and convincing evidence", and is applied in cases or situations involving an
equitable remedy or where a presumptive civil liberty interest exists.

10. Beyond reasonable doubt

This is the highest standard used as the burden of proof in Anglo-American
jurisprudence and typically only applies in criminal proceedings and when
considering aggravating circumstances in criminal proceedings. It has been described, in
negative terms, as a proof having been met if there is no plausible reason to believe
otherwise. If there is 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, then the level of
proof has not been met.
Proof beyond a reasonable doubt, therefore, is proof of such a convincing character
that one would be willing to rely and act upon it without hesitation in the most important of
one's own affairs. However, it does not mean an absolute certainty. The standard that must be
met by the prosecution's evidence in a criminal prosecution is that no other logical
explanation can be derived from the facts except that the defendant committed the crime,
thereby overcoming the presumption that a person is innocent unless and until proven guilty.
If the trier of fact has no doubt as to the defendant's guilt, or if their only doubts
are unreasonable doubts, then the prosecutor has proved the defendant's guilt beyond a
reasonable doubt and the defendant should be pronounced guilty.The term connotes that
evidence establishes a particular point to a moral certainty which precludes the existence of
any reasonable alternatives. It does not mean that no doubt exists as to the accused's guilt, but
only that no reasonable doubt is possible from the evidence presented.[19] Further to this
notion of moral certainty, where the trier of fact relies on proof that is solely
circumstantial, i.e., when conviction is based entirely on circumstantial evidence, certain
jurisdictions specifically require the prosecution's burden of proof to be such that the facts
proved must exclude to a moral certainty every reasonable hypothesis or inference other than
guilt.
The main reason that this high level of proof is demanded in criminal trials is that
such proceedings can result in the deprivation of a defendant's liberty or even in his or her
death. These outcomes are far more severe than in civil trials, in which monetary damages are
the common remedy. Another noncriminal instance in which proof beyond a reasonable
doubt is applied is LPS conservatorship.

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STANDARD OF PROOF IN UNITED KINGDOM:

In the three jurisdictions of the UK (Northern Ireland; England & Wales; and Scotland) there
are only two standards of proof in trials. (There are others which are defined in statutes, such
as those relating to police powers.)
The criminal standard was formerly described as "beyond reasonable doubt". That
standard remains, and the words commonly used, though the Judicial Studies Board guidance
is that juries might be assisted by being told that to convict they must be persuaded "so that
you are sure".The civil standard is 'the balance of probabilities', often referred to in judgments
as "more likely than not". The civil standard is also used in criminal trials in relation to those
defences which must be proven by the defendant (for example, the statutory defence to drunk
in charge that there was no likelihood of the accused driving while still over the alcohol
limit[20]). However, where the law does not stipulate a reverse burden of proof, the defendant
need only raise the issue and it is then for the prosecution to negate the defence to the
criminal standard in the usual way (for example, that of self-defence
Prior to the decision of the House of Lords in Re B (A Child) [2008] UKHL
35 there had been some confusion – even at the Court of Appeal – as to whether there was
some intermediate standard, described as the 'heightened standard'. The House of Lords
found that there was not. As the above description of the American system shows, anxiety by
judges about making decisions on very serious matters on the basis of the balance of
probabilities had led to a departure from the common law principles of just two
standards. Baroness Hale said:
Neither the seriousness of the allegation nor the seriousness of the consequences
should make any difference to the standard of proof to be applied in determining the facts.
The inherent probabilities are simply something to be taken into account, where relevant, in
deciding where the truth lies. There is no logical or necessary connection between seriousness
and probability. Some seriously harmful behaviour, such as murder, is sufficiently rare to be
inherently improbable in most circumstances. Even then there are circumstances, such as a
body with its throat cut and no weapon to hand, where it is not at all improbable. Other
seriously harmful behaviour, such as alcohol or drug abuse, is regrettably all too common and
not at all improbable. Nor are serious allegations made in a vacuum. Consider the famous
example of the animal seen in Regent’s Park. If it is seen outside the zoo on a stretch of
greensward regularly used for walking dogs, then of course it is more likely to be a dog than
a lion. If it is seen in the zoo next to the lions’ enclosure when the door is open, then it may
well be more likely to be a lion than a dog.
The task for the tribunal then when faced with serious allegations is to recognise that
their seriousness generally means they are inherently unlikely, such that to be satisfied that a
fact is more likely than not the evidence must be of a good quality. But the standard of proof
remains 'the balance of probabilities

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OTHER STANDARDS FOR PRESENTING CASES OR DRFENCES:
Air of reality: ( R v Cinous)
The "air of reality" is a standard of proof used in Canada to determine whether a
criminal defense may be used. The test asks whether a defense can be successful if it is
assumed that all the claimed facts are to be true. In most cases, the burden of proof rests
solely on the prosecution, negating the need for a defense of this kind. However, when
exceptions arise and the burden of proof has been shifted to the defendant, they are required
to establish a defense that bears an "air of reality." Two instances in which such a case might
arise are, first, when a prima facie case has been made against the defendant or, second, when
the defense mounts an affirmative defense, such as the insanity defense.
Evidentiary standards of proof:
Depending on the legal venue or intra-case hearing, varying levels of reliability of proof are
considered dispositive of the inquiry being entertained. If the subject threshold level of
reliability has been met by the presentation of the evidence, then the thing is considered
legally proved for that trial, hearing or inquest. For example, in California, several
evidentiary presumptions are codified, including a presumption that the owner of legal title is
the beneficial owner (rebuttable only by clear and convincing evidence).

Examples
Criminal law:
In the West, criminal cases usually place the burden of proof on
the prosecutor (expressed in the Latin brocard ei incumbit probatio qui dicit, non qui negat,
"the burden of proof rests on who asserts, not on who denies"). This principle is known as
the presumption of innocence, and is summed up with "innocent until proven guilty," but is
not upheld in all legal systems or jurisdictions. Where it is upheld, the accused will be found
not guilty if this burden of proof is not sufficiently shown by the prosecution. [24] The
presumption of innocence means three things:

 With respect to the critical facts of a case the defendant has no burden of proof
whatsoever.[25]
 The state must prove the critical facts of the case to the appropriate level of certainty.
 The jury is not to draw any inferences adverse to the defendant from the fact that he has
been charged with a crime and is present in court facing the charges against him.
For example, if the defendant (D) is charged with murder, the prosecutor (P) bears the burden
of proof to show the jury that D did indeed murder someone.

 Burden of proof:
 Burden of production: P has to show some evidence that D had committed murder. The
United States Supreme Court has ruled that the Constitution requires enough evidence to
justify a rational trier of fact to find guilt beyond a reasonable doubt. If the judge rules
that such burden has been met, then it is up to the jury itself to decide if they are, in fact,
convinced of guilty beyond a reasonable doubt.[26]If the judge finds there is not enough
evidence under the standard, the case must be dismissed (or a subsequent guilty verdict
must be vacated and the charges dismissed). e.g. witness, forensic

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 evidence, autopsy report. Failure to meet the burden: the issue will be decided as a matter
of law. In this case, D is presumed innocent.
 Burden of persuasion: if at the close of evidence, the jury cannot decide if P has
established with relevant level of certainty that D had committed murder, the jury must
find D not guilty of the crime of murder.
 Measure of proof: P has to prove every element of the offence beyond a reasonable
doubt, but not necessarily prove every single fact beyond a reasonable doubt.
However, in England and Wales, the Magistrates' Courts Act 1980, s.101 stipulates
that where a defendant relies on some "exception, exemption, proviso, excuse or
qualification" in his defence, the legal burden of proof as to that exception falls on the
defendant, though only on the balance of probabilities. For example, a person charged with
being drunk in charge of a motor vehicle can raise the defence that there was no likelihood of
his driving while drunk. The prosecution has the legal burden of proof beyond reasonable
doubt that the defendant exceeded the legal limit of alcohol and was in control of a motor
vehicle. Possession of the keys is usually sufficient to prove control, even if the defendant is
not in the vehicle and is perhaps in a nearby bar. That being proved, the defendant has the
legal burden of proof on the balance of probabilities that he was not likely to drive.[28]
In 2002, such practice in England and Wales was challenged as contrary to
the European Convention on Human Rights (ECHR), art.6(2) guaranteeing right to a fair trial.
The House of Lords held that:

 A mere evidential burden did not contravene art.6(2);

 A legal / persuasive burden did not necessarily contravene art.6(2) so long as confined
within reasonable limits, considering the questions:
o What must the prosecution prove to transfer burden to the defendant?
o Is the defendant required to prove something difficult or easily within his access?
o What threat to society is the provision designed to combat?
In some cases, there is a reverse onus on the accused. A typical example is that of
a hit-and-run charge prosecuted under the Canadian Criminal Code. The defendant is
presumed to have fled the scene of a crash, to avoid civil or criminal liability, if the
prosecution can prove the remaining essential elements of the offence.

Civil law
In civil law cases, the "burden of proof" requires the plaintiff to convince the trier of
fact (whether judge or jury) of the plaintiff's entitlement to the relief sought. This means that
the plaintiff must prove each element of the claim, or cause of action, in order to recover.
However, in cases of proving loss of future earning capacity, the plaintiff must prove there is
a real or substantial possibility of such a loss occurring.
Civil cases of the U.S. Supreme Court
In Keyes v. Sch. Dist. (1973),6 the United States Supreme Court stated:"There are
no hard-and-fast standards governing the allocation of the burden of proof in every situation.
The issue, rather, 'is merely a question of policy and fairness based on experience in the
different situations.'" For support, the Court cited John H. Wigmore, 7In Keyes, the Supreme

6
Keyes v. Sch. Dist. No. 1, 413 U.S. 189 (1973)
7
John H. Wigmore, Evidence § 2486, at 275 (3d ed. 1940).

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Court held that if "school authorities have been found to have practised purposeful
segregation in part of a school system," the burden of persuasion shifts to the school to prove
that it did not engage in such discrimination in other segregated schools in the same system.
In Director, Office of Workers' Compensation Programs v. Greenwich Collieries,
8
(1994), the Supreme Court explained that burden of proof is ambiguous because it has
historically referred to two distinct burdens: the burden of persuasion, and the burden of
production. The Supreme Court discussed how courts should allocate the burden of proof
(i.e., the burden of persuasion) in Schaffer ex rel. Schaffer v. Weast, (2005).9The Supreme
Court explained that if a statute is silent about the burden of persuasion, the court will "begin
with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims." In
support of this proposition, the Court cited 2 J. Strong, 1999,10 which states:
“The burdens of pleading and proof with regard to most facts have been and should be
assigned to the plaintiff who generally seeks to change the present state of affairs and who
therefore naturally should be expected to bear the risk of failure of proof or persuasion.”
At the same time, the Supreme Court also recognized "The ordinary default rule, of
course, admits of exceptions. ... For example, the burden of persuasion as to certain elements
of a plaintiff's claim may be shifted to defendants, when such elements can fairly be
characterized as affirmative defenses or exemptions. See, e.g., FTC v. Morton Salt Co.
(1948).11 Under some circumstances this Court has even placed the burden of persuasion over
an entire claim on the defendant. The same is also held in Alaska Dept. of Environmental
Conservation v. EPA (2004).12

FAILURE OF PROOF:

Illicit enrichment crime comprises of the following elements;

a. Public official

b. increase of wealth

c. failure of proof

d. period of office, and

e. the criminal intention (Boles, 2014).

According to the concept of this crime; the defendant should bear the burden of proof
the legitimacy source of such increase occurred the wealth; otherwise, it shall be regarded an
illicit enrichment. Therefore, this notion shifts the burden of proof from the prosecutor to the
public official .

However, many countries which criminalize illicit enrichment adopted this method,
entirely or partially but explicitly, in their legislations; especially in the developing countries

8
Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994)
9
Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49 (2005).
10
J. Strong, McCormick on Evidence § 337, 412 (5th ed. 1999)
11
FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948)
12
Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461 (2004)

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because of lack proficiency and strength due to the shortage of strong legal framework and
lack of proficiency; for instance, JordanBrazil, Colombia, Algeria, El Salvador, Egypt,
Lebanon, Costa Rica, Guyana, Iraq, Lithuania, Yemen, and Argentina.

Whereas, most of the developed countries do not criminalize this offence, for
example, the United States, Canada and the majority of west EU countries. However, the
Jordanian Illicit Enrichment law establishes a further requirement to identify the suspected
wealth where the prosecution should prove the link between this increase and the exploitation
position. However, failure of proof is one of the elements of the illicit enrichment offence ,
i.e. when the defendant (public official) fails to prove or explain the excessive of wealth in
relation to the lawful sources and thus, presumed that he/she committed a corruption crime.

Practically, failure of proof is problematic and controversial issue; due to many

considerations Firstly, the general principle put the burden of proof on the shoulder of the
public prosecution, whereas the notion of illicit enrichment shifts this obligation to the
defendant (public official)13Secondly, is the burden of proof part of prosecution processes, or
an element of the crime, as in the case of illicit enrichment offence? Furthermore, some
scholars argue that the fundamental principle in human rights is the presumption of innocence
until proven guilty according to the law14, meanwhile, the legal conception of illicit
enrichment assumed guilt of the accused what is so-called as self-incrimination, until he/she
proves his innocence. BEsides, other scholars argue, as long the presumption of innocence is
rebuttable; the failure of proof should not be considered an element of illicit enrichment
offence. Quite to the contrary, other scholars argue that, creating the offence of illicit
enrichment brings a new tool of presumption of law in which the defendant required to
explain the legitimate source of the wealth; therefore it can facilitate the investigation and the
gathering of information as well as assisting the prosecution process in recovering the stolen
asset. Consequently, it improves the integrity, accountability and raises the awareness on
abuse of public office. Hence, illicit enrichment is considered as an effective measure to
overcome or solve the “secret nature” of the offence and the difficulty of prove, particularly
in the corruption cases.

If the public official ought to explain the legal origin of his wealth, then the
prosecution must prove the nexus between this increasing and the exploitation of public
office. However, in some exceptional situations and under some restrictions, the Jordanian
legislator shifts the burden of proof from the prosecutor to the defendant; for example, in
cases of money laundering, smuggling, tax evasion and illicit enrichment. The third important
provision is related the confession which means: “a statement admitting or acknowledging
all facts necessary for conviction of a crime ”.

Article 216 of the Criminal Procedures law provides: “2. If the accused confessed,
the judge shall order to recording the accused confession as close as to the words he used.
The court may content itself with his confession and then shall impose the penalty prescribed

13
(Gantz, 1998, p12; Henning, 2001, p9; Hoggard, 2004, p5).
14
(Universal Declaration of Human Rights, 1948)
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for his crime, unless the court decides otherwise”. Accordingly, confession comprises the
following elements:

(1) confession shall be made by the defendant himself in his free will (Al-
Marsafawi, 1996; Salamah, 1998).
(2) (ii) the contents of confession should be attributed to the defendant himself
(Al-Marsafawi, 1996).
(3) (iii) confession should related to the act/acts of crime he committed in explicit
clear sentences and unequivocal or ambiguity (Ra’oof, 1985).
(4) (iv) confession must consistent with reality and facts (Namor, 2013).
According to the CP law there are two kinds of confessions:
(a) judicial confession which made by the defendant before the court.
(b) Non-judicial confession: means a confession made by the defendant to
non-judicial authority for example, article 159 of the Criminal Procedure Law
provides:

“The deposition made by the accused, suspect, or defendant in the absence of the prosecutor,
in which he confesses of committing a crime shall be admissible only if the public
prosecution provides an evidence on the circumstances under which the statement was made
and the court is convinced that the accused, suspect, or defendant made such statement
voluntarily.”

Therefore, the judge, according to his self-conviction, may or may not accept the confession
if legal conditions are not fulfilled, because confession like other evidences, they may be
unreliable and inadmissible (Salamah, 1998) or in other words, subject to admissibility of
evidence rules.

PRESUMPTION OF INNOCENCE:

Initially, presumption of innocence means any person is innocence and should

not be convicted unless if the public prosecutor bears the burden of proof to provide
evidence on guilt beyond a reasonable doubt, that is to say, the defendant does not have to
prove his innocence or bear the burden of proof. Hence, presumption of innocence is
one of the most important principles of human rights, and many of the international,
regional and national legal documents provided this basic principle as human rights.

For example, article 11(1) of the Universal Declaration on Human Rights

(UDHR) provides: “Everyone charged with a penal offence has the right to be presumed
innocent until proven guilty according to law in a public trial at which he has had all the
guarantees necessary for his defence.”

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CONFLICT BETWEEN BURDEN OF PROOF AND PRESUMPTION OF
INNOCENCE:

Initially, criminalization of illicit enrichment is based on shifting the burden of

proof from the prosecution to the suspected person, where the accused is presumed to be
innocent based on the principle of presumption of innocence. Therefore, some scholars
consider the shifting of the burden as some sort of infraction against the human rights . In
addition, such method also conflicts with the national constitutional provisions. On the
contrary, other scholars like Professor Rinat Kitai opposes the presumption of innocence, and
consider it as not absolute principle, due to some limitations in relation to the followings-
unfair compared with other legal presumptions; the status of accused himself, considerations
relating to the legislative policy in the fight against certain crimes and balancing between the
state and the individual rights.

However, much legislation adopted this procedural technique during the

prosecution and trial of illicit enrichment to shift the onus of proof to the defendant because it
is considered as an effective tool to curb corruption. Moreover, there are strong
considerations by the European Court of Human Rights to allow shifting the burden of proof
to the defendant in few cases which are-

(a) in the so-called strict liability offences,

(b) in confiscation of pecuniary gain acquired by a criminal offence and

(c) in criminal offences in which the burden of proof has been shifted to the defendant”
(Derencinovic, 2010).

In the case of Jordan, the presumption of innocence is implemented in line with the
legal provisions as mentioned earlier. However, there are specific crimes, where the law
shifts the burden of proof to the defendant, for example, article 4 of the Anti-Money
Laundering Law and article 55A from the Income Tax Law. As well, the Jordanian Illicit
Enrichment Law shifts partially the burden of proof to the subject person, but the prosecution
has also to prove the exploitation of office or position and the defendant shall prove the legal
source of the excess part of the wealth.

Accordingly, the Illicit Enrichment Law considers the failure of proof as an

element of illicit enrichment but not consider it as crucial one, unlike the international
practices and concepts, whereby the absence of reasonable justification is considered as
presumption of guilt on illicit enrichment cases. According to the Jordanian Illicit Enrichment
law, the failure of proof must combined with the element of exploitation. Article 4 of the said
law highlights this issue in the following selective clauses “due to exploitation of his position,
office…..if this increase does not commensurate with their financial resources, and the
subject person fail to prove a legitimate source of the increase.”

As such, the Jordanian Illicit Enrichment Law reallocates the burden of proof
between the public prosecution and the public official. Interestingly, according to a
respondent that “Such a distribution the roles in the trial of illicit enrichment (if any), will

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surely weaken the accusation due to the necessity to prove physical element of exploitation,
whereby the defendant can easily elude the conviction, because both of two elements are
interconnected”.

CONCLUSION:

This article discusses the burden of proof in the prosecution of illicit enrichment,
where the concept of illicit enrichment shifts the burden of proof from the public prosecution
to the defendant in order to explain the lawful sources of excessive wealth or any part of it.
Some jurisdictions reject this notion due to the conflict with the fundamental principles of
human rights and constitutional provisions such as in the United States and Canada. As well,
some scholars considered such shifting of proof infringe the basic principle of fair trials and it
may be also subject to abuse and consequently causing bias in prosecution. It has been
evidentiary that the burden of proof remains on the prosecution side. The illicit enrichment as
one of corruption crimes normally associated with other serious crimes like money
laundering, organized crimes and terrorism. As such, preserving public fund is a strong
argument to justify the shift of burden of proof partly to the defendant to explain the nexus of
excessive wealth to legal sources, which eventually, does not constitute a violation against
the presumption of innocence.

BIBLIOGRAPHY:

BOOKS:

1. The Onus Probandi Preparation for Trial by William H Bailey Paperback 1

Dec 2018
2. J. Strong, McCormick on Evidence § 337, 412 (5th ed. 1999)

ONLINE RESOURCES:

1. www.westlaw.in
2. www.heinonline.in
3. www.scconline.in
4. www.academia.edu.in
5. www.lawoctopuc.com

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