Criminal Defendant To Prove Responsibility

In criminal proceedings, opinions differ in theoretical and practical circles about whether the defendant need shoulder the burden of proof. Those who are against it hold that the defendant doesn't have to shoulder the burden of producing evidences to prove whether he/she is guilty or not, because, according to the principles of "the Presumption of Innocence" and "No compulsory Self-incrimination", it is the prosecution who should produce evidences to prove the defendant is guilty. Those who are for it argue that it is clearly stated in current laws that the defendant need shoulder the burden of proof for such crimes as "holding a huge amount of property with unidentified sources" and "illegally holding state secrets, confidential documents, materials or articles". Based on theories and provisions on the burden of proof by the defendant in different countries and regions with different modes of proceedings, and the judiciary practice in our country, the present writer analyzes the status quo of the burden of proof by the defendant, and the compatibility and consistency between the burden of proof by the defendant and the principles of "the Presumption of Innocence" and "No Compulsory Self-incrimination", the criminal defendant's right to remain silent and the criminal defendant's right to counsel. The present writer holds the view that, in criminal proceedings in our country, it is an absolute and unconditional provision that the prosecution should shoulder the burden of producing evidences to prove the defendant is guilty, and generally it is not up to the defendant to prove he/she is guilty or innocent. However, in particular circumstances, the defendant still has to produce evidences to prove his/her innocence, the pettiness of his/her crime or exemption from criminal responsibility. The defendant's burden of proof is relative and conditional.The present writer classifies the burden of proof by the defendant into two cases. In the first case, it is clearly stated in laws that the defendant has the burden of proof for some of the constitutive requirements of crimes. This is called in theory "the Inversion of Evidential Burden". In the case of "the Inversion of Evidential Burden", the defendant and the prosecution have the same standard of shouldering the burden of proof; and both have to prove beyond reasonable doubt without the shifting of the burden of proof. In the second case, in particular stages of a criminal proceeding, to deny the prosecution's accusation or to mitigate his /her criminal responsibility, the defendant has the burden of producing evidences to prove his/her active defending claim. This case is called in theory "the Transfer of the Burden of Proof. The standard of the defendant's shouldering the transfer of the burden of proof varies in two situations. In the first one, the defendant produces evidences to prove his/her active defending claim for innocence. The testimony standard used is generally the standard of "Reasonable Doubt" in Anglo - American law system. In the second one, the defendant produces evidences to prove his/her active defending claim for the pettiness of his/her crime or exemption from criminal responsibility. The testimony standard used is generally that of "Probability Advantage" in Anglo-American law system. When the burden of proof is transferred, the defendant may shoulder the burden of proof in all criminal cases. It aims to transfer between the prosecution and the defendant so as to push forward the legal proceeding. However, the final burden of persuasion rests on the prosecution.Finally, the present writer puts forward some suggestions on how to, safeguard the criminal defendant's burden of proof, such as , widening the range of providing legal aid for the criminal defendant, the buildup of the lawyer' right of investigation and gathering for evidences, the perfecting of the system of pending custody, and judicial impartiality of the judiciary departments.