Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt The secondary meaning of the term “burden of proof” relates to the duty of going forward in producing evidence to support an allegation of fact, also referred to as the “burden of production,”297 or “evidential burden.”298 This burden applies to the prosecution as well as the accused when advancing a defence, such as the affirmative defence of self-defence.299 In such instances, the prosecution will need to prove beyond a reasonable doubt that the accused did not act in self-defence, or that he or she exceeded the limits of self-defence. The accused, however, will first need to present the requisite amount of evidence for advancing self-defence, (which could vary from a mere “scintilla” of evidence to the proof by a preponderance of evidence). Once the accused has produced the requisite amount of evidence for advancing self-defence, thus discharging its burden of production, the judge must instruct the jury to consider this defence and find in favour of the accused if the prosecution fails to disprove self-defence beyond a reasonable doubt. The amount of evidence that the accused must adduce to discharge the burden of production in relation to raising a defence varies significantly among jurisdictions.300 In some states in the US, to advance mental disability as a defence, the accused must submit some evidence, which could mean “more than a scintilla, yet, of course, the amount need not be so substantial as to require, if uncontroverted, a directed verdict of acquittal.”301 In advancing self-defence, some US jurisdictions require evidence which “when viewed in the light most favourable to the accused, might arguablylead a juror to entertain a reasonable doubtas to the defendant’ s guilt.”302 Other US state jurisdictions require the accused to establish selfKazazi, p. 22. Colin Tapper, Cross and Tapper on Evidence 121-23 (Butterworth, 8th ed. 1995), discussing the “evidential burden,” as a party’s obligation to show that there is sufficient evidence to establish the existence or non-existence of a fact in issue. 299 Affirmative defences are generally defined as “an excuse or justification peculiarly within the knowledge of the accused, on which he can fairly be required to adduce supporting evidence.” See Model Penal Code of the American Law Institute (1985), § 1.12(3)(c). An affirmative defence is sometimes also described as one saying: “Yes, I did it, but I had a good reason.” See State v. Cohen, 568 So 2d 49, 51-52 (Fla. 1990). Examples of affirmative defences include self-defence, insanity, and defence of others. See also Stephen M. Everhart, Putting a Burden of Production on the Defendant before Admitting Evidence that Someone Else Committed the Crime Charged: Is It Constitutional? 76(2) Neb. L. Rev. 272, 288-292 (1997), analyzing various affirmative defences and alibi. 300 For an excellent, albeit dated research and analysis of US jurisprudence in relation to the burden of proof practices and the differing standards for raising defences, see Fletcher. 301 See McDonald v. United States, 312 F.2d 847, 849 (D. C. Cir. 1962), in relation to the accused’s claim of mental disability as a defence, the US Court of Appeals District of Columbia Circuit stated: “[I]f there is ‘some evidence’ supporting the defendant’s claim of mental disability, he is entitled to have that the issue submitted to the jury….[T]here can be no sharp quantitative or qualitative definition of ‘some evidence.’ Certainly it means more than a scintilla, yet, of course, the amount need not be so substantial as to require, if uncontroverted, a directed verdict of acquittal.” (internal citations omitted.) 302 See generally Lamont v. State, 934 P.2d 774, 777 (1997), where in relation to self-defence, the Court of Appeals of Alaska stated: “It is well recognized that the burden is on the defendant to produce some evidence in support of a claim of self-defence before he will be entitled to a jury instruction. The burden to produce some evidence of self-defence is not, however, a heavy one; this standard is satisfied when self-defence has been fairly called into issue. In each case, the relevant inquiry is, ‘did the evidence, viewed in the light most favourable to the defendant, generate the issue of self-defence for jury consideration?’ A jury question will be presented and an instruction required if the evidence, when viewed in the light most favourable to the accused, might arguably lead a juror to entertain a reasonable doubt as to the defendant’s guilt.” See also Frazier v. Weatherholtz, 572 F.2d 994, 995 (4th Cir, 1978), holding that the burden of proving self-defence is on the accused, “but only to the extent of raising in the minds of the jury a reasonable doubt.” 297 298 68