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Barristers have I got this right

(14 Posts)
WeekendsAreHappyDays Fri 28-Feb-14 15:16:54

In a row with someone that defence and prosecution are held to the same evidential standards my understanding of a trial is a defence barrister does not have to "prove" anything, they have to provide a reasonable doubt, a prosecution barrister has to "prove" and provide evidence for things.A defence barrister can put forward a theory, a prosecution barrister has to put forward FACTS. They do not operate under the same burden of proof, because "proof" is not the job of a defence barrister, reasonable doubt it.That is the basis of the English legal system. You may not like that but there you go.I do not think the defence barrister breeched anything - because I have had the difference in requirements of the 2 explained to me fully, by the professionals I mentioned below including a therapist and a CPS Barrister.

So a defence barrister does not need "proof of theories", a prosecution barrister must prove their case.

lougle Fri 28-Feb-14 15:23:28

You don't need to be a barrister to answer that - you're right. Reasonable doubt is far easier to attain than 'beyond reasonable doubt'. Rightly.

WeekendsAreHappyDays Fri 28-Feb-14 15:37:13

Im sure Im right I have had it explained to me by some very senior people in their field. Ive linked her here so that the tread it stems from doesnt get derailed with a technical legal arguement.

I was hoping someone more professionally qualified than me would be believed where I am not.

eurochick Fri 28-Feb-14 15:39:47

You are right - it is the prosecution that needs to prove its case.

On certain aspects of a case, the burden of proof can be on the defendant, but the general rule is that it is on the prosecution.

(Barrister here, although not in criminal practice.)

lougle Fri 28-Feb-14 15:47:15

Oooh, it's a thread about a thread? They're against the law in MN and you don't need a barrister to tell you ;)

WeekendsAreHappyDays Fri 28-Feb-14 15:50:54

I know I thought I made it clear in my first post then realised that only made sense to me - its a very interesting thread but it doesnt need to derailed - plus for very personal reasons and no longer having access to people who can explain I wanted to be sure I'm not going mad and I wasn't completely wrong.its not a sneaky one, I've linked to this from there so it can be clearly seen.

WeekendsAreHappyDays Fri 28-Feb-14 15:52:22

euro thank you - as I understand it a defence barrister cannot "lie" but pretty much anything else that introduces reasonable doubt is fair game?

Velma67 Fri 28-Feb-14 15:54:32

I presume you are talking about criminal cases? Civil cases are somewhat different as they are judged on "the balance of probabilities" ie what is most likely to have happened.

CelticPromise Fri 28-Feb-14 15:55:32

You're right. I was a criminal defence solicitor until recently. It is for the prosecution to prove guilt beyond reasonable doubt.

WeekendsAreHappyDays Fri 28-Feb-14 16:21:16

Yes criminal - specifically abuse trials but all criminal cases really - thank you both.

eurochick Fri 28-Feb-14 16:23:57

Velma that is right with regards to the standard, but it is still the claimant who bears the burden of proving its claim (with some exceptions, as in criminal cases).

Weekends yes, a defence barrister cannot put forward something they know not to be true but they can do everything they can to introduce reasonable doubt.

Spero Fri 28-Feb-14 18:34:13

The general rule for all legal proceedings is 'he who asserts must prove' so if the prosecution allege you have committed a crime they have to prove it.

But as others have said, there are some exceptions to the general rule and sometimes the burden of proof swaps over, but the general rule holds good in most cases.

WeekendsAreHappyDays Fri 28-Feb-14 20:42:58

Thank you all - I think Spero Ive come across you explaining before.

trufflehunterthebadger Fri 28-Feb-14 22:51:59

in the criminal court it is the prosecution that has to prove guilt. Not the defence that has to prove innocence.

Technically you could offer no defence at all and still be found innocent if CPS/police have not done their job properly

(I have 10 years in the police service and the last 6 years specifically working in criminal trials)

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