Rethinking the relationship between reverse burdens and the presumption of innocence

Abstract

Criminal lawyers regard burdens of proof placed on the accused with deep suspicion. Recently, this suspicion has spurred an interest in how to reconcile these so-called ‘reverse burdens’ with the rule that it is for the prosecution to prove guilt beyond a reasonable doubt in a criminal trial. Though views on this differ among commentators, all reach their conclusions by reference to the presumption of innocence (PoI). Unfortunately, such analysis frequently falls prey to a serious error. Namely, the existing literature fails to adequately distinguish the thin conception of the PoI (a trial rule) from a thick PoI (a general norm of the criminal law) or ignores the distinction entirely. In either case, failure to appreciate this distinction and attend to its consequences raises significant doubt that existing analyses of reverse burdens are sound. This article addresses this failure and offers a fresh approach to reconciling reverse burdens and the PoI.