criminal-law comparative-law rules-of-evidence burden-of-proof
Are there any criminal jurisdictions where burden of proof rests so entirely on prosecution that defense does not need to deal with evidence?
<p>In criminal trial processes that I'm aware of, particularly adversarial, burden of proof is nominally with the prosecution in most circumstances, but in practice it seems to be somewhat shared - both sides introduce witnesses, and both sides cross-examine the other's witnesses, each generally trying to create a convincing story and undermine the basis of the other's story.</p>
<p>So I wonder whether there are any criminal trial processes around the world which place the entire burden of collecting evidence on the prosecution, and the burden of testing it on either the prosecution or a combination of prosecution and court, making it unnecessary for the defence to introduce or test evidence, and sufficient for them to point out shortcomings in the prosecution's evidence base.</p>

<p>The common law adversarial system is just that: the prosecution <em>must</em> prove its case beyond reasonable doubt.</p>
<p>The defense is not obliged to call evidence at all. They are <em>allowed to</em> though: they will do it merely if they feel that the prosecution evidence needs rebuttal — in order to discredit the evidence or, at least, raise that &quot;reasonable doubt&quot;.</p>

<h2>Yes</h2>
<p>The common law legal systems all require proof beyond reasonable doubt of each of the elements of the crime. If the prosecution fails to provide enough evidence to meet that burden on any of the elements then the defendant is not guilty.</p>
<p>As a practical matter, this is dealt with in different ways depending on the status of the investigation/trial.</p>
<ul>
<li>If the police don't believe they have sufficient evidence they will continue to investigate until they do (or they give up).</li>
<li>If the police take their evidence to the prosecutor/DA and they don't believe its sufficient then the police will be told to go away and get more.</li>
<li>Once the prosecutor/DA decides to proceed, there is usually a preliminary hearing. In most places in the common law world, this is called a committal hearing and takes place before a judge. Some parts of the USA still use the Grand Jury system. Notwithstanding, the general theory is that the judge/jury is shown all the evidence and asked this simple question: if all the evidence presented is accepted as true, is there enough to convict? If the answer is yes, the defendant is indicted to stand trial, if no, then they aren't.</li>
<li>During the trial, once the prosecution has rested (i.e. before the defence has presented any evidence), if they haven't met their burden, the defence might make a motion for a directed verdict (or the judge might do so unprompted). That is, if the judge believes that all of the prosecution's evidence if accepted in full has not proved beyond a reasonable doubt all the elements of the crime, they will direct the jury to return a not guilty verdict and the trial is over. And unappealable. And subject to double jeopardy. This is why the previous steps are so important to the government.</li>
<li>On appeal from a guilty verdict (whether or not the defence presented a case), the appeals court may decide that, based on the evidence the prosecution presented, no reasonable jury could have found the defendant guilty (therefore implying that <em>this</em> jury was <em>unreasonable</em>). They may enter an acquittal, ending the matter, or direct a re-trial.</li>
</ul>

<p><strong>&quot;burden of proof is nominally with the prosecution in most circumstances, but in practice it seems to be somewhat shared&quot;</strong></p>
<p>The issue is in your interpretation of the phrase &quot;burden of proof&quot;. This term has a specific meaning. What it doesn't mean is that a particular party is the only one who can or should give evidence. Rather, it means that the responsibility for proving a fact which is a required element of the crime lies with that party.</p>
<p>These concepts may appear on the surface to overlap. The prosecution says &quot;my evidence shows that the defendant did X&quot; and the defence says &quot;my evidence shows that the defendant did not do X&quot;; both parties appear to be taking directly opposing approaches. But the important distinction is that the prosecution, to win their case, <em>must</em> establish that the defendant did X while the defence, to win their case, <em>does not need</em> to establish that the defendant did not do X.</p>
<p>To put it another way, it is enough for the defence that the prosecution fails to prove their case. For the prosecution, it is <em>not</em> enough that the defence fails to prove their case. Going back to the example, if the prosecution fails to establish that the defendant did X, then the defence has won. But if the defence fails to establish that the defendant did not do X, then that is insufficient by itself for the prosecution to win.</p>
<p>For that reason, the defence can in theory sit back and do nothing at all but simply watch the prosecution's case fail (in practice they can make a submission of &quot;no case to answer&quot; if they feel they can win without any defence). The prosecution does not have the option of making an accusation and then sitting back to watch the defence fail to disprove it. They <em>must</em> establish the facts of the crime beyond reasonable doubt.</p>

<p>As other answers noted, the defence doesn't have to provide evidence at all if they don't want to. It's up to the prosecution to prove guilt in most places, and the defence only needs to provide evidence in as far as they want to challenge the evidence provided by the prosecution.</p>
<p>As for what you actually seem to be getting at:</p>
<p><strong>Having the prosecution take on the entire burden of evidence (of both sides) would be a gigantic conflict of interest</strong> that would probably only exist in places you really don't want to live, if it exists at all.</p>
<p>The goal of the prosecution is ... to prosecute. The goal of the defence is to defend. Neither party would be particularly motivated to provide evidence that works against their side. If you want to get rid of this structure and simply have someone provide evidence without the goal to either prosecute or defend, then you'd need to find someone unbiased (and have some way to ensure they're unbiased and they actually do a good job), which could be difficult, to say the least. It's much easier to get 2 biased parties to represent each side.</p>
<p>Separating the two is the best guarantee that each side is represented in the best possible way and that you'd get the most accurate representation of <em>what actually happened</em>*.</p>
<p>Now the prosecution may be, and often is, legally required to share all evidence, and they may have a duty to find all the most relevant evidence in order to be sure of the truth (and certainly should be motivated to be sure they have <em>the right person</em> before charging anyone). But they still wouldn't be motivated to go to the same lengths to find evidence and present it fairly as the defence would (pay someone enough, and they'll scour every inch of the Earth for even the tiniest morsel of evidence that could help your case). The less honorable members of prosecutions may go as far as they can get away with in omitting evidence or presenting it unfairly. The defence is a very core part of the checks-and-balances on the prosecution and a very core part of ensuring a fair trial.</p>
<p>As for why the court doesn't take on much responsibility to gather or test evidence, letting the accused pick their own lawyer to do that is a better idea*. You'd need quite an advanced understanding of the case to challenge evidence properly, so this isn't something that can really just happen within the court. A lawyer (or lawyers), or similar, would need to actually study the case in detail. Having the accused pick this lawyer means they won't be able to argue that the court represented their case poorly (but of course if the lawyer they chose represents them poorly, there may be mechanisms in place to let them choose another). Of course in a lot of places you can get a court-appointed lawyer or public defender, but this is typically provided to those who can't afford their own representation (which is probably a whole other rabbit hole one can go down).</p>
<p>*: (at least in theory)</p>
<hr />
<p>Let's suppose the prosecution gathers all the evidence. Consider a fairly simple example of an eye witness that would help the defence.</p>
<p>Since the eye witness would hurt their case, the prosecution wouldn't want to mention this eye witness to the defence or court, and they certainly wouldn't want to spend a lot of time or effort actually finding out whether such an eye witness exists, locating them and convincing them to testify.</p>
<p>Assuming they didn't gather their own evidence, neither the defence nor court would have any idea that this eye witness exists.</p>
<p>If the defence gathered their own evidence, they'd be much more motivated to find and present this eye witness.</p>

<p>In any legal system where the defendant is &quot;presumed innocent until proven guilty beyond a reasonable doubt&quot;, the burden of proof rests entirely on the prosecution. The defense has no <em>burden</em> which would require them to provide evidence.</p>
<p>However, the defense has the <em>right</em> to provide evidence, and it is almost always in the defense's interest to do so. The goal of the defense is to convince the jury (or judge, if there is no jury) that the prosecution's evidence does not prove the defendant to be guilty beyond reasonable doubt. If the defense has evidence which contradicts the prosecution's evidence, or at least introduces doubt that the prosecution's evidence shows what they purport it to show, then the defendant is more likely to be found not guilty. The defense lawyer has a duty to act in the defendant's interest, and it would be a dereliction of that duty not to provide evidence which is likely to help their client achieve a better outcome, if such evidence exists. And such evidence almost always exists, even if it only indicates that the defendant deserves a more lenient sentence.</p>
<p>So this is not a matter of &quot;burden&quot; or about who &quot;should have to&quot; provide evidence. Either the defense is permitted to introduce evidence, in which case you get the existing court system; or the defense is <em>not</em> permitted to introduce evidence, which would be much less fair and much more likely to lead to miscarriages of justice.</p>

<p>This is typically the case: the prosecution must prove there is a case. If they can't then the defense might not even need to defend. See:</p>
<p><a href="https://www.defence-barrister.co.uk/submission-of-no-case-to-answer" rel="nofollow noreferrer">Submission of No Case to Answer</a></p>
<blockquote>
<p>Where the prosecution case is weak, either because there is no evidence to prove the offence or, although there is some evidence, the evidence is insufficient to support a conviction, the defence may make an application to the judge (in the Crown Court) or to the magistrates or District Judge (in the magistrates’ court) to dismiss the case because there is no case to answer.</p>
<p>A successful application will result in a not guilty verdict.</p>
</blockquote>
<p>You can see from the source that this usually happens after the prosecution rests their case (typically in a case the prosecution goes first, the defense goes second). If the prosecution case is weak, then the case can be halted at this point via &quot;no case to answer&quot;, and the defense would not need to present their case.</p>
<p>Real life example:</p>
<p><a href="https://www.thestar.com.my/news/nation/2019/11/11/court-orders-najib-to-enter-defence-over-rm42mil-src-case" rel="nofollow noreferrer">Court orders Najib to enter defence over RM42mil SRC case (updated)</a></p>
<blockquote>
<p>High Court judge Justice Mohd Nazlan Mohd Ghazali made the order after ruling that the prosecution had proven a prima facie case against the Pekan MP.</p>
<p>&quot;The prosecution has successfully adduced credible evidence proving each and every essential ingredient of the offences of abuse of position for gratification, criminal breach of trust and money laundering as framed in the charges,&quot; said the judge who took almost an hour to read his decision here on Monday.</p>
</blockquote>
<p>Note this doesn't mean Najib is convicted. It is still possible the defense is strong enough that the trial results in a not guilty verdict. It just means there is enough evidence against him that he must defend himself (&quot;enter his defense&quot;).</p>

<blockquote>
<p>So I wonder whether there are any criminal trial processes around the world which place the entire burden of collecting evidence on the prosecution</p>
</blockquote>
<p>In the US, there <em>is</em> a burden on the prosecution to present the case against the defendant's guilt. The prosecution is required to provide all exculpatory evidence to the defense, and it is a massive ethics violation for a prosecutor to prosecute a case if they do not have a good faith belief, after due diligence in examining the evidence, that the defendant is guilty.</p>
<p>The problem, of course, is that prosecutors are human, are confirmation bias is a thing. In some cases, prosecutors may even act with malice, and deliberately misrepresent the case. The fact that the defendant often presents a case can be viewed not as that they have the <em>burden</em> of refuting the prosecutor's case, but rather they have the <em>right</em> to step in if the prosecutor has not fulfilled <em>their</em> obligation to refute their own case.</p>
<p>Another way of looking it is that there is some bar that has to be reached to find the defendant guilty. Presumption of innocence means that we start below that bar, and the prosecution tries to get as far above that bar as possible, and then once the prosecution is done, the defense tries to get back down below the bar. The farther above the bar the prosecution gets, the more evidence the defense has to present to get below it. If the prosecution didn't get above it in the first place, then the defense doesn't have to present any evidence.</p>
<p>As long there are cases close to that bar, there are going to be times where a strong defense can make the difference as to whether we end up above or below the bar. In any <em>particular</em> case, we may be able to put the bar someplace where a defense is unnecessary, but we can't put in anywhere such that <em>no</em> case needs a defense, unless it's so high that no one can be convicted.</p>
<blockquote>
<p>making it unnecessary for the defence to introduce or test evidence,</p>
</blockquote>
<p>If the bar is set so high that it's completely impossible for the prosecution to meet it, then it's a moot point. As long as it's possible for the bar to be reached, then once it is reached, the defense needs to present evidence the other way.</p>
<p>Like many things in life, in law, &quot;can&quot; generally translates into &quot;must&quot;. If your lawyer can decrease the probability of you getting acquitted by juggling while hopping on one foot, they ethically <em>must</em> juggle while hopping on one foot. Fairness requires that we allow a defendant to present a case, and as long as a defendant <em>can</em> present a case, they <em>must</em> present a case unless they're willing to get convicted or the prosecutor's case is so extremely flimsy that there's absolutely no chance of conviction.</p>
<blockquote>
<p>and sufficient for them to point out shortcomings in the prosecution's evidence base.</p>
</blockquote>
<p>Presenting a case <em>is</em> pointing out shortcomings in the prosecution's evidence base.</p>

<p>As others pointed out, there is a gap between theory and practice.</p>
<ul>
<li><em>In theory,</em> the prosecution must prove their case and the judge and/or jury will act accordingly. The defense has to do nothing.</li>
<li><em>In practice,</em> prosecutors are not supposed to bring a case if they don't think they can win (a waste of taxpayer's money, if nothing else). So if the prosecutor sees fit to present a case, it is a good guess that the defense should answer.</li>
</ul>
<p>But there is actually a system where the defense can remain silent more easily. In <a href="https://en.wikipedia.org/wiki/Inquisitorial_system" rel="nofollow noreferrer">inquisitorial systems</a>, it is the task of the judge to determine truth and justice, not just to be a referee between two sides. So there is a legal professional in the room who is not automatically on the side of the prosecution, and allowed to question witnesses, etc. That <em>can</em> be a good thing in minor cases where the defendant appears without counsel.</p>

<p>&quot;Innocent until proven guilty&quot; sets the stage in the <a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" rel="tag">united-states</a></p>
<p>I know of a case where the prosecution presented a few items of evidence.  Each one was disallowed as hearsay.</p>
<p>When the prosecution rested, the defense counsel said, &quot;Your honor, the defense rests&quot;.  This is important - see below.</p>
<p>The judge told the jury to return a &quot;directed verdict&quot;; there was no evidence of guilt, so the only possible verdict was 'innocent'.</p>
<p>Had the defense counsel presented <em>anything</em>, the prosecution could rebut and use that as evidence of guilt.</p>
