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This concept is associated with Julius Paulus Presentisms’, 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.)
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.
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 fulfil the burden of proof for a
negative claim.
Example:
Internet personality Matt Dillahunt gives the example of a large jar full of gumballs to
illustrate the burden of proof. 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:
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.
Legal standards for burden of proof :
Some evidence
Per Superintendent v. Hill (1985), 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), the some evidence standard is required to
overrule a jury's finding of guilt in criminal cases.
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."[8]
The reasonable indication standard is used in interpreting trade law in determining if the
United States has been materially injured.[9]
Reasonable suspicion
Main article: Reasonable suspicion
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, 490 U.S. 1 (1989), 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:
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. The presumption of innocence means
three things:
With respect to the critical facts of a case the defendant has no burden of proof
whatsoever.
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).
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
Is the defendant required to prove something difficult or easily within his access?
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).
Henceforth, this article discusses the failure of proof in relationship with the burden of proof
and presumption of innocence. According to the concept of this crime; the defendant should
bear the burden of proof the legitimacy source of such increase occurred the wealth
(Henning, 2001); otherwise, it shall be regarded an illicit enrichment (United Nations, 2009).
Therefore, this notion shifts the burden of proof from the prosecutor to the public official
(Chanda, 2004). However, many countries which criminalize illicit enrichment adopted this
method, entirely or partially but explicitly, in their legislations; especially in the developing
countries because of lack proficiency and strength (Anita, 2007) due to the shortage of strong
legal framework and lack of proficiency; for instance, Jordan (Muzila et al, 2011), Brazil,
Colombia, Algeria, El Salvador, Egypt, Lebanon, Costa Rica, Guyana, Iraq, Lithuania,
Yemen, and Argentina (United Nations, 2002). Whereas, most of the developed countries do
not criminalize this offence, for example, the United States, Canada and the majority of west
EU countries (Derencinovic, 2010). 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 (Muzila et al, 2012).
However, failure of proof is one of the elements of the illicit enrichment offence (Zadoyan et
al, 2014; Fagan, 2013), 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 (Perdriel-Vaissiere, 2012; Chanda, 2004).
Practically, failure of proof is problematic and controversial issue (Kofele-Kale, 2006); due to
many considerations (Perdriel-Vaissiere, 2012; Chanda, 2004). 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) (Gantz, 1998, p12;
Henning, 2001, p9; Hoggard, 2004, p5). Secondly, is the burden of proof part of prosecution
processes, or an element of the crime, as in the case of illicit enrichment offence? (Chanda,
2004). Furthermore, some scholars argue that the fundamental principle in human rights is
the presumption of innocence until proven guilty according to the law (Universal Declaration
of Human Rights, 1948), 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
(Kofele-Kale, 2006). 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 (Schroth, 2003). 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 (Chanda, 2004); therefore it can facilitate the
investigation and the gathering of information (Perdriel-Vaissiere, 2012) 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 (Chanda, 2004).
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
(Derencinovic, 2010). 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 (United Nation, 2006). 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 [51]”
(Black, 1991). 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 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). (ii) the contents of confession should be
attributed to the defendant himself (Al-Marsafawi, 1996). (iii) confession should related to
the act/acts of crime he committed in explicit clear sentences and unequivocal or ambiguity
(Ra’oof, 1985). (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.
has been mentioned in different legislation for example, article 101(4) from the Constitution
of Jordan provides- “The accused is innocent until proven guilty by a final verdict.”
Similarly, article 147 of the Criminal Procedures law provides “The accused shall remain
innocent until proven guilty. The Egyptian Court of Cassation had adopted this conclusion in
some of its decisions as follows “The accused (Abdul Hameed) was the former governor of
Al-Jeeza governorate attained for himself and to his spouse Rajja' and his minor children
Khaled and Waleed a significant increase on his wealth of, plus 22930,301USD, and 798
Sterling Pound, 50730 DEM.” In addition to that, he bought an apartment with the price
which was less than the real price against the will of the owner, because the accused was the
governor and compelled the owner to sell the apartment with a low price. The Court of
Felonies found him guilty because all of the elements of illicit enrichment crime were
available and the increase on wealth was due to the exploitation of his position as a governor,
plus, he failed to prove the legitimate source of that increase. However, the Court of
Cassation acquitted him based on the principle of presumption of innocence (Case no. 30342
of 2000). Accordingly, since the public prosecution alleges against any person of any crime,
then it shall carry out the burden of proof on its own shoulder to prove beyond reasonable
doubts that the accused person is guilty according to the law, otherwise, the accused person
shall be presumed innocence, and he is not required to prove his innocence (Naughton, 2011).
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.