A deficit of understanding - how prevalent is this?

[jean]

...if he did go on to say something about reversed burden of proof then to the question asked by the jury "Does the defendant have an obligation to present a defence?" the answer should have been ... yes? Maybe? Sort of?

This, from a legal website, assumes a burden of proof in the case of this particular, peculiar defence different from that which obtains generally:

A defendant relying on this defence therefore has to prove two things, on the balance of probabilities:

1. That the crime was committed in the presence of her husband
2. That the crime was committed under the coercion of her husband

[Pabmusic]

I do hope this all gets sorted out before we get equal marriage

That had just crossed my mind, too. Perhaps Scotty could give an opinion (25 guineas, as it's a legal opinion).

[amateur51]

That had just crossed my mind, too. Perhaps Scotty could give an opinion (25 guineas, as it's a legal opinion).

He'd want cash, tho'

[french frank]

I do hope this all gets sorted out before we get equal marriage

They may have to redraft the Bill in light of this case:

"(2) The following expressions have the meanings given—
(a) “husband” includes a man who is married to another man;
(b) “wife” includes a woman who is married to another woman;"

'Marital coercion' as a defence is only available to wives ...
(50 guineas, please)

[amateur51]

They may have to redraft the Bill in light of this case:

"(2) The following expressions have the meanings given—
(a) “husband” includes a man who is married to another man;
(b) “wife” includes a woman who is married to another woman;"

'Marital coercion' as a defence is only available to wives ...
(50 guineas, please)

I think we need further consultation on your final point french frank

Would you take a cheque? Written on a banana, naturally

[Barbirollians]

Pabmusic is spot on . Julien Sorel - it is a question of fact - namely having heard all the evidence does the jury believe that she filled in the form in the presence of her husband and was coerced to do so . If they do so believe that to be the case on the balance of probabilities ( i.e is it more likely than not ) then she is not guilty if they do not then she is guilty .

There are similar evidential burdens upon defendants in other contexts such as where it is a defence to show that you had a reasonable excuse say for apparently breaching the terms of an ASBO see S1(10) Crime and Disorder Act 1998 as amended . The defendant has to prove that they had a reasonable excuse for doing something prohibited by their ASBO on the balance of probabilities .

[jean]

...it is a question of fact - namely having heard all the evidence does the jury believe that she filled in the form in the presence of her husband...

That's not the difficult bit.

...and was coerced to do so .

That is.

In the absence of photographic evidence of him twisting her arm, what could possibly be said that would not be mere speculation?

(Read this quickly, before it disappears!)

[eighthobstruction]

sons testimony plus text record....

[Julien Sorel]

Balance of probability is a very specialist definition of fact, then.

It being such a specialist definition of fact what's wrong with a non-specialist jury asking a specialist judge for clarification?

From the BBC report they asked him: "Does the defendant have an obligation to present a defence?" and he answered: "There is no burden on the defendant to prove her innocence. On the contrary, there is no burden on the defendant to prove anything at all." Which (a) doesn't answer the question asked (b) might well be true but ... doesn't answer the question asked (c) if in this case "the defendant has to prove that they had a reasonable excuse for doing something" is positively misleading or it would mislead me deficient as I doubtless am (if it's the only answer he gave. And, like jean, I find it odd that if he did go on to say something about the defendant having to prove something that wasn't reported. Indeed it's reported that he said "there is no burden on the defendant to prove anything at all." Which is ... wrong?)

Another non-deficient question (to me, at any rate) is "Please expand upon the definition, specifically 'was will overborne'." Indeed, I'd have been tempted to phrase the question differently .

[Barbirollians]

Jean I am afraid you misunderstand the nature of a trial . It is not a question of speculation - it is a question of hearing her evidence and considering all the circumstantial evidence and deciding whether you believe , on the balance of probabilities that she was coerced in the presence of her husband . It is not speculation at all .

If , you believe having heard the evidence that in his presence she had no choice but to fill in that form then she is not guilty - if you believe she had a choice and yet still decided to fill the form in she is guilty. The defence as i understand it does not require physical threat or violence. That is an altogether different defence of duress .

[Barbirollians]

Balance of probability is a very specialist definition of fact, then.

It being such a specialist definition of fact what's wrong with a non-specialist jury asking a specialist judge for clarification?

From the BBC report they asked him: "Does the defendant have an obligation to present a defence?" and he answered: "There is no burden on the defendant to prove her innocence. On the contrary, there is no burden on the defendant to prove anything at all." Which (a) doesn't answer the question asked (b) might well be true but ... doesn't answer the question asked (c) if in this case "the defendant has to prove that they had a reasonable excuse for doing something" is positively misleading or it would mislead me deficient as I doubtless am (if it's the only answer he gave. And, like jean, I find it odd that if he did go on to say something about the defendant having to prove something that wasn't reported).

Another non-deficient question (to me, at any rate) is "Please expand upon the definition, specifically 'was will overborne'." Indeed, I'd have been tempted to phrase the question differently .

As I understand it - Sweeney J's frustration was that he had already made the very basic concepts clear as to their need to be sure , that they could not speculate and that they must make their decision solely on the evidence they had heard had escaped at least some members of the jury .

No - balance of probability is not definition of fact . That is the test that has to be applied to the standard of proof in deciding a question of fact .

So for example in a civil trial where balance of probabilities is the test - A alleges B was driving negligently and pulled out in front of him so he could not stop in time - B alleges there was plenty of time for him to come out of the side road but that A was not driving with due care and accelerated passing a parked car and that was why they collided .




The judge decides having heard their evidence , the evidence from a passer-by and the police report of skid marks etc - that it is more likely than not that the accident was caused by B pulling out and that A was driving perfectly safely . He thus makes a finding of fact that this is what happened applying the standard of proof of balance of probabilities .

[Julien Sorel]

This is what The Daily Telegraph reports Mr Justice Sweeney saying:

“There is no burden on the defendant to prove her innocence [or] to present a defence. In this case the defendant has given evidence and it is for you to judge the evidence from her in the same way you would any other witness.” http://www.telegraph.co.uk/news/poli...h-verdict.html

I don't see how that squares with what Pabmusic and Barbirollians write concerning a specific 'evidential burden' involved with a defence of 'marital coercion' on the defendant.

[Julien Sorel]

The judge decides having heard their evidence , the evidence from a passer-by and the police report of skid marks etc - that it is more likely than not that the accident was caused by B pulling out and that A was driving perfectly safely . He thus makes a finding of fact that this is what happened applying the standard of proof of balance of probabilities .

So how do you determine balance of probability when the evidence basically comes down to whether or not you believe what someone says about their mental state at a particular moment 10 years ago? When presented with a prosecution which says something along the lines of 'she's a high-flyer, a career woman, if you think she could be coerced into doing anything you're having a laugh'?

The example you give involves (a) witness evidence (b) physical evidence. Which is why I queried your statement that it is a simple question of fact. Which brings me back to my sense, from what I've read, that it's all very well to say there's a clear distinction between inference and speculation except where there isn't a clear distinction.

[Barbirollians]

Section 47 CJA 1925 concludes with these words


it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband.

Hence , there is an evidential burden on the wife . I was not there I have no idea what Sweeney J said nor do I know what he said in his summing up but I am sure he made the constituent elements of the defence clear .

[Pabmusic]

This is what The Daily Telegraph reports Mr Justice Sweeney saying:

“There is no burden on the defendant to prove her innocence [or] to present a defence. In this case the defendant has given evidence and it is for you to judge the evidence from her in the same way you would any other witness.” http://www.telegraph.co.uk/news/poli...h-verdict.html

I don't see how that squares with what Pabmusic and Barbirollians write concerning a specific 'evidential burden' involved with a defence of 'marital coercion' on the defendant.

I looked it up in that fount of legal knowledge, Wikipedia, and it agrees with Barbirollians and me (and Jean - post 31):

http://en.wikipedia.org/wiki/Marital_coercion

However, this does not necessarily make me think that Sweeney was wrong. After all, if he did say it as reported, I'd have expected counsel for the prosecution to have been on his feet immediately. That would have been reported.