Burden Of Proof In Criminal And Common Law - Free Essay Example

He who asserts must prove. This statement of law allows us to understand that in criminal cases the onus of proof rests with the prosecution and that the standard of proof is one that must be satisfied beyond a reasonable doubt  [1]  . However, there are exceptions to this in the form of both statutory exceptions and within case law  [2]  . The statement also allows us to see that in civil cases the onus of proof rests with the party who raises the issue and the standard of proof is lessened to on the balance of probabilities  [3]  . There are two types of burdens of proof: the first is the persuasive burden which is when a party satisfies the court to the appropriate standard  [4]  . It is possible for both parties to bear the persuasive burden depending on the case in hand  [5]  . The second is the evidential burden which is when a party has to bring enough evidence in order for the court to at least consider the issue in hand  [6]  . These bu rdens are matter of law and will apply in each issue which is raised within the court  [7]  . In criminal cases the basic rule is that the burden of proof rests with the prosecution in order to win their case  [8]  . In the case of Slater v HMA  [9]  it was stated that: The jury was told that what is familiarly known as the presumption of innocence in criminal cases applied to the appellant (in light of his ambiguous character) with less effect than it would have applied to a man whose character was not open to suspicion. This amounted, in our opinion, to a clear misdirection in law. The presumption of innocence applies to every person with a criminal offence in precisely the same way, and it can be overcome only by evidence relevant to prove the crime with the commission of which he is charged. The evidential burden is important when it comes to criminal matters due to the presumption of innocence. It used to be the case that it was thought that the accused was required to prove special defences however the case of Lambie v HMA  [10]  stated that this is not the case and stated that it is for the prosecution to disprove the defence beyond a reasonable doubt  [11]  . The only thing which the accused has to do is meet the minimal requirements of pointing at some evidence which allows the defence to be raised the evidential burden  [12]  . The accused must also give notice when wishing to use a special defence. There are exceptions to the general rule that it is for the prosecution to bear the burden of proof in criminal cases. There are four exceptions in which the burden of proof will shift  [13]  . The first is when the accused pleads a special defence of either insanity or diminished responsibility (which is not technically a special defence as it does not result in the accused being acquitted)  [14]  . They are named special defences as they require the accused to give written notice to the court that these defen ces will be used in order for the prosecution to understand the line of evidence the defence will take  [15]  . Hume stated that when an accused wishes to plead insanity the persuasive burden will for that reason rest on the accused  [16]  . However, the evidential burden would also switch to the accused  [17]  . This is due to the fact that it would be very difficult for the prosecution to disprove this defence as the prosecution cannot force the accused to have psychiatric examinations to be done; therefore the burden is placed with the accused  [18]  . The second exception to the general rule is when other special defences are used these include alibi, self-defence or incrimination  [19]  . There is no requirement for the accused to corroborate the evidence put forward  [20]  . As well as common law exceptions to the general rule that the burden of proof lies with the prosecution in criminal case there are also statutory exceptions. These include Parli ament switching the burden of proof through Acts of parliament in relation to defences plead by the accused to specific crimes  [21]  . An example of this can be seen in the Criminal Law (Consolidation) (Scotland) Act 1995  [22]  which states that Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence. However, as it is unusual for a statute to make express provision as to where the burden of proof lies the Criminal Procedure (Scotland) Act 1995  [23]  states that Where, in relation to an offence create by or under an enactment any exception, exemption, proviso, excuse or qualification, is expressed to have effect whether by the same or any other enactment, the exception, exemption, proviso, excuse or qualification need not be specified or negative in the indictment or complaint, and the prosecution is not required to prove it, but the accused ma y do so. In civil cases, the burden of proof is said to lie with he who asserts a right given to him by the law must prove the facts necessary to establish it  [24]  which allows us to understand that the burden of proof will normally rest with the pursuer  [25]  . However, the burden of proof may switch between the parties when it comes to dealing with different issues, this will usually happen when the defender is pleading certain defences (for example contributory negligence)  [26]  . The reason for this is that the parties in a civil matter are not normally required to prove a negative therefore the burden of proof will rest with the defender to prove rather than the pursuer to disprove  [27]  . There are also statutory exceptions to the general rule that in civil cases the burden of proof will rest with the pursuer  [28]  . The leading case for statutory exceptions is Nimmo v Alexander Cowan Sons Ltd  [29]  . The statute under consideration in thi s case was the Factories Act 1962  [30]  and concerned safe working practices. It was held that the burden of proof rested with the purser in order to prove that the working conditions were not safe however, the pursuer was not required to prove that it was not reasonably practicable to make them safe and if the defender wished to rely on this then the burden of proof would switch  [31]  . The standard of proof in any case depicts both the amount and the quality of evidence which has to be lead in order for the burden of proof to be released  [32]  . In criminal cases this standard is said to be one of beyond reasonable doubt  [33]  therefore, the prosecution must prove the accuseds guilt beyond a reasonable doubt  [34]  . There has been difficulty is defining what can be classed as beyond a reasonable doubt and that there can be no quantitative amount place on it  [35]  . However, it has been described as something more than a merely speculative or academ ic doubt  [36]  . When the burden of proof switches to the pursuer in criminal cases the question of what standard of proof shall be used must be asked  [37]  . The case of HMA v Mitchell  [38]  states the common law position, in relation to the defences of insanity and diminished responsibility, with Lord Justice-Clerk Thomsons charge to the jury stating that: The burden of proof is on the defence, because in our law there is a presumption that a man is sane. But you must keep clearly in mind that the burden in the case of an accused person is not so heavy a burden as the burden which is laid on the CrownÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒâ€šÃ‚ ¦ the Crown has to prove its case beyond a reasonable doubtÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒâ€šÃ‚ ¦ Where, however, the burden of proof is on the accused, it is enough if he brings evidence which satisfies you of the probability of what he is called upon to establishÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒâ€šÃ‚ ¦ it is a question of the balance f probabili ties. Therefore, the standard of proof changes from on beyond a reasonable doubt to on the balance of probabilities  [39]  . In relation to all other common law issues, in criminal matters, the burden of proof will remain with the Crown and should there be a reasonable doubt in the mind of the trier then the accused should be acquitted as the Crown has failed in discharging the persuasive burden  [40]  . The standard of proof which is required when a statute places the burden of proof on the pursuer is also on the balance of probabilities  [41]  .

Postmodern Social Construct Gender Role Issues Essay

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Tartuffe Essay Research Paper Molieres neoclassic comedy free essay sample

Tartuffe Essay, Research Paper Moliere? s neoclassic comedy, Tartuffe, is a premier illustration of his expertness in the comedic technique. The secret plan is one that keeps the reader or spectator interested and cognizant. It begins with Madame Pernell sing her boy? s house and censuring all of them but their lodger, Tartuffe. She believes Tartuffe is a adult male of amazing character. The members of the house, nevertheless, disagree and say that Tartuffe is fallacious and a fraud. After Madam Pernell leaves, Dorine and Cleante, the amah and the brother-in-law of the chief character, Orgon, discuss Tartuffe and both agree that he has captivated Orgon. Damis, Orgon? s boy, wonders whether his male parent will let Mariane, Orgon? s girl, to get married Valere, who she is in love with, because Damis is in love with Valere? s sister. Orgon comes and tells Mariane that he wants her to get married Tartuffe alternatively of Valere because he wants to ally Tartuffe to his house. She is so aghast that she does non state anything. Cleante tries to state Orgon about Tartuffe? s misdirecting personality, but Orgon does non desire to hear it. Valere finds out about this proposed matrimony, and Dorine promises to assist Mariane and Cleante expose Tartuffe for the dissembler he is. Meanwhile, Damis has a program to conceal in a cupboard to seek to expose Tartuffe? s lip service. He hears Tartuffe profess love to Elmire, Orgon? s married woman, and suggests that they become lovers. Damis comes from the cupboard and threatens to state Orgon what he has said. Damis so tells Orgon, and Orgon is so unsighted to the truth, that he believes his ain boy is evil and disinherits him. Subsequently, when Orgon and Tartuffe are entirely, Orgon tells Tartuffe of his programs to do him his sole heir and his son-in-law. After this, Cleante tries to speak to Orgon about Tartuffe and he confronts Tartuffe in forepart of Orgon. Tartuffe merely dodges the inquiries, though, and leave s every bit shortly as possible. Elmire so convinces Orgon to conceal and happen out for himself about Tartuffe, so he does so. Tartuffe comes to see Elmire and one time once more professes his love. Orgon hears it all, comes from the cupboard, and prohibitions Tartuffe from his house. Orgon, nevertheless, has already signed over his house to Tartuffe and Tartuffe threatens him with this. Orgon is afraid because he has given Tartuffe some secret documents that could destroy his place in the tribunal. Tartuffe comes back subsequently with officers of the tribunal to seek to acquire Orgon? s house, but the male monarch has seen through Tartuffe and sides with Orgon. Tartuffe is ordered to be arrested and the narrative ends. This production seems to be about the sightlessness of Orgon and how easy a individual can lead on another. Tartuffe has fooled cipher but Orgon? the adult male who has the power and wealth in this state of affairs. The characters in this P ballad all play a certain function in the secret plan. Elmire, Orgon? s married woman, presents a sensible attitude towards life and the state of affairs. She was the lone one able to convert Orgon to see for himself that Tartuffe was a dissembler. She wants nil but to salvage her hubby from Tartuffe? s control. Damis, Orgon? s boy, is the luckless psyche to take the incrimination for his male parent? s misjudgment of Tartuffe. In seeking to assist his male parent, he loses his trust and his ties to him. He wants to maintain Tartuffe off from his household, but the lone thing he succeeds in making is losing his heritage. Mariane is the lovely girl, who is traveling to be forced to get married a adult male she does non love or even like. She is portion of Orgon? s program to do Tartuffe a member of the family, whether she likes it or non. She merely wants to get married the adult male she loves. Cleante is Orgon? s brother-in jurisprudence. He tries to acquire everyone to see the stat e of affairs with unagitated and ground. He wants the best for Orgon and his household. Tartuffe is the impostor who weasels his manner into Orgon? s heritage and so betrays him. He is merely looking for the money and is a really avaricious adult male. Orgon is the cardinal character that comes under the influence of Tartuffe. His lone want seems to be to do Tartuffe an ally to his house. He is unsighted to the existent state of affairs and seems to hold no common sense and no trust in his household and what they are stating him. He is duped by Tartuffe, and is merely saved by those he would non listen to earlier. He is a complex adult male who makes the narrative what it is. Tartuffe is a adult male of fraudulence and lecherousness. He lusts for money and this is what becomes his concluding ruin. He is the scoundrel of the production, which is obvious to both the audience and those in the narrative, except for Orgon and Madam Pernell. He is a maestro of masking his true ego. As a spiritual fan, he convinces Orgon and Madam Pernell that he is a pious and low adult male. He is a superior in the fact that he can acknowledge his victims failings and drama on them. He exploits these defects for his ain advantages. Tartuffe is far from a simple adult male. He is really watchful and uses all methods possible to make his end. In the production we watched the histrion playing Tartuffe brought these features to life. He was really successful in portraying the utmost falseness of Tartuffe. His behavior depicted 1 who betrays. There was such a complete alteration in attitude and behaviour when he would be with person such as Cleante than when he was with Orgon. His voice would go more sincere sounding ( even though we know it genuinely was non ) and he would soften his whole personality when he was with Orgon. I found it singular how accurately he portrayed Tartuffe. I believe he was highly successful in conveying Tartuffe? s character to life.