The Persistent Problem of the Prosecutor's Prima Facie Burden

Abstract

[A]t the end of the prosecution's case, the accused is entitled to an acquittal unless the case against him, at this intermediate stage, 'has been made out which if unrebutted would warrant his conviction'. While the principle of proof beyond reasonable doubt at the end of the trial is reasonably clear, the question of the precise burden of proof on the prosecution at the end of its case (the prima facie burden) has been embroiled in controversy for the last sixteen years. The choice which emerges from this debate is between proof beyond a reasonable doubt, unless the accused successfully rebuts the case against him ('maximum evaluation'), and the existence of some evidence, which, if believed, would found a conviction ('minimum evaluation'). . . . The existence of respectable, even eminent, legal opinion on both sides of the dispute alerts us at once to the suspicion that the choice between the two alternative interpretations cannot be easily made.