A Study On The Burden Of Proof Of Defendant In Criminal Cases

With the facts of the cases not clear, the judges have to make a decision. Then the burden of proof acts as not only the rules of the decision but also the means to distribution of the litigation risk. It is significant for a fair and efficient litigation tasks to clear distribution of the burden of proof. In criminal proceedings, according to the presumption of innocence, the burden of proof should lie on the prosecutors, which are the base rules in many countries. As an exception to the rules, the defendants should also assume the burden of proof. Through studying criminal legislation in many countries, we can find the examples about it. However there is a legislative gap in our country now. At the same time, theorists and practitioners are not on common understanding. So clarifying the burden of proof on the defendants is very important for protecting their rights and completing criminal proceeding proof system. This paper is divided into four parts to discuss the burden of proof on the defendant.The first part of the paper is the systemic exposition for the criminal proof theory, which is the base of the whole paper. Firstly, through making contrast to the concepts of criminal proof between common law and civil law, then clarifying the rich connotation of the burden of proof, the writer proposes the phase theory about burden of proof. On analyzing different understandings, the writer makes a reflection on our traditional theory of burden of proof, who also think we should reconstruction our criminal proof ,which including the burden of bring evidence, the burden of persuasion using evidence and burden of losing the suits. Secondly, the writer analyze the distribution philosophy of the criminal proof, which conclude the presumption of innocence, prosecution and defense principle of balance, litigation economy. In the criminal proceedings, it is a common rule to distribute the burden of proving the defendant guilty on the prosecutors.The second part of the paper analyzes the defendants'burden of proof on the theoretical level, which is the key part of the paper. First of all, the writer analyzes the rationality and legitimacy of the defendants'burden of proof. It is not contradict to the presumption of innocence. On the other side, it is the requirement of criminal policy and the need of the defendant getting rid of adverse presumption. But the burden of proof on the defendants is different from the prosecutors'. It showed lagged on the time, part on the content, diversity on the proof standard and differences on the legal results. Then, writer concluding the main types of defendant'burden of proof are adverse presumption burden of proof, affirmative defense burden of proof, faces of proceeding law burden of proof.The third part of the paper proves the defendant assuming the burden of proof are common on the judicial practice point of view. Through comparative study on the legislation in common law and civil law, the writer though in the common law the confront parties make the burden of proof more important, while the duty to explore the faces of the judges in civil law make the burden of proof a little dull. So considering the reform of the confrontation court in our country, we can learn from the foreign experience. The writer point we cannot neglect the burden of bring evidence of defendant because of the judges rights of investigation and evidence collection.The forth part of the paper is the key and difficult part, which analyzes the deficiency on the theory and practice on the burden of proof in our country, and proposed the thinking and advice on the system of defendants'burden of proof. Including clarify the range of burden of proof, distinguishing the burden of bring evidence from persuasion, restrict the appliance of the criminal presumption. Then to clarify the standard of the defendants'lower than the prosecutors', and the judges use the reasonable doubt and preponderance proof to make defendant guilty. At last, according to judiciary in our country, we must give system security on the defendants'burden of proof. Firstly we should complete counsel defense system to ensure the defendant collecting evidence. Secondly we must found discovery system to ensure the defendant and lawyer to know the evidence in advance. At last we must enhance the judges'investigation and evidence collection power out of the court to provide remedy for defendant collecting evidence.