Initially on the plaintiff

So far we have only discussed the relationship between the presumption of innocence and the allocation of burden of proof in criminal law. In the context of civil law, several differences are seen. While the burden of proof is fairly fixed in criminal law, and only reverses with statutory exceptions and insanity, it can shift with greater freedom in civil law. In civil litigation, the burden of proof is initially on the plaintiff.

However, there are a number of technical situations in which the burden shifts to the defendant – for example, when the plaintiff has made a prima facie case, the burden shifts to the defendant to rebut the plaintiff's evidence. Thus, as Medawar v Grand Hotel Co. demonstrates, upon whom the onus of proof rests depends on the circumstances of the trial. This shifting to and from is often described as shifting of the burden of proof and so it is, but it is really a shifting of the ultimate burden.

The ultimate burden is where the ultimate decision of a case depends on the determination of a number of separate issues, the burden on the ultimate issue need to be distinguished from the burden on the separate issues. The Medawar v Grand Hotel, the ultimate issue is whether the relation between the host and the guest was ever created, and if so, when it ceased.

The answer to these questions would determine whether it is the plaintiff or the defendant who must prove his opponent's negligence and liability. It is important to remember that even though there is a shifting of burden in civil law, the general principle that "he who asserts must prove" is still followed, so that the formal burden of the plaintiff who claims negligence does not shift.

Lord Pearson, in Henderson v Jenkins, through clarifying the distinction between evidential and formal burden, says: "If in the course of the trial, there is a set of fact which raises a prima facie inference that the accident was caused by the negligence on the part of the defendants, the issue will be decided in the plaintiff's favor unless the defendants by their evidence provide some answer which is adequate to displace the prima facie inference" (pg.

6). The defendant's evidence did not meet this standard and was found to be guilty of negligence. The above analysis of these cases have shown that the relationship between the presumption of innocence and the burden of proof is one of co-servant, helping each other to serve the general goal of allowing the accused the same right and respect as his accuser and the practical purpose of identifying the evidential obligation of each party in a trial.

In spelling out the burden of the prosecution, the court advances the purpose of protecting the accused from impossible evidential requirements. In spelling out the burden of the accused, the court ensures that the prosecution is protected from the impossible requirement of anticipating and disproving all the defenses that might or might not break his case.

Some might say that by presuming the innocence of the accused, when this presumption does not reflect any intrinsically likely proposition, and placing the difficult task of proving guilt on the prosecution, the court affords too much protection to possible criminals, and thereby, belittles the suffering of their victims. There might be some sympathy so such an argument, however, there is much more force behind our moral obligation to not wrongly convict innocent people. The presumption of innocence as applied through allocating the burden of proof enforces well this commitment.

1 Cross & Jones, An Introduction to Criminal Law, 6th ed. Butterworths, 1968. p.65. 

2 Coffin v United States, (1985) 156 US 432

3 Cross & Tapper, Evidence, 8th ed. Buttterworths, 1995. pg. 139

4 Cross & Tapper, Evidence, 8th ed. Buttterworths, 1995. pg. 143