C O M P A R AT I V E S T U D Y The judge gives instructions on the duty of the jurors to find the facts using their own judgement and common sense. The judge reminds the jurors that it is their duty to find the facts and follow the law as instructed without being influenced by any personal likes or dislikes, prejudices, or sympathies. The judge also reminds the jury of the accused’s right to remain silent and that the accused is presumed to be innocent unless and until his or her guilt is established beyond a reasonable doubt. The judge instructs the jury that the burden of proof is always on the prosecution and that the accused has the right to rely upon the failure or inability of the prosecution to establish beyond a reasonable doubt any essential element of a crime charged.293 The standard of proof that the trier of fact will apply in determining whether the prosecution has proved all the elements of the charges is the reasonable doubt standard. Any evidence adduced during the questioning of witnesses by the defence should be considered as any other evidence. Presumed innocent throughout the trial, the accused is under no obligation to present any evidence, and no adverse inferences can be drawn from a failure to advance any evidence contrary to what is presented by the prosecution or from remaining silent.294 The defence is not required to present any evidence, save for when raising a defence, and, even then, the evidence need not rise to the reasonable doubt standard. The defence can remain silent during the trial proceedings yet still argue that the prosecution failed to prove the charges beyond a reasonable doubt. In other words, an accused’s silence or lack of presentation of evidence does not factor into the equation as to whether the prosecution has proved its case beyond a reasonable doubt. So, the primary meaning of the term “burden of proof” refers to the duty of a party to persuade the trier of fact by the end of the case of the truth of certain allegations as presented by the parties.295 This is also called the “burden of persuasion” or “the risk of non-persuasion.”296 The prosecution always bears the burden of persuasion in establishing the guilt of the accused by proving the charges beyond a reasonable doubt. This burden of proof remains on the prosecution throughout the trial. See sub-section “Standard of proof of guilt” above. “‘The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. In this sense the right is closely linked to the presumption of innocence….’ It is the task of the prosecution to prove the guilt of the accused. The latter thus does not have to establish his or her innocence. A fortiriori there is not the slightest duty on the defence to contribute to a conviction of, for that matter, to contribute in any way to the proceedings.” Stefan Trechsel, Human Rights in Criminal Proceedings 348 (Oxford University Press, 2006), quoting and interpreting Saunders v. United Kingdom (1996) ECHR , para. 68. 295 Mojtaba Kazazi, Burden of Proof and Related Issues: A Study on Evidence Before International Tribunals 22 (Martinus Nijhoff Publishers 1996) (hereinafter “Kazazi”), providing general comparative observations regarding the burden and standard of proof in common and civil law systems. 296 Kazazi, p. 22. See also Kokott, clarifying the terminology and comparing the German and American systems with regard to the issue of burden of proof. 293 294 67