Burden of Proof

Burden of proof is the legal obligation to produce sufficient evidence for an assertion made in court, and it is a fundamental procedural principle of international criminal law determining which party bears responsibility for proving the claims advanced in a case. The principle is recognised across national and international legal systems and constitutes one of the cornerstones of a fair trial.

In criminal cases, the burden of proof rests as a starting point with the prosecution. It is the prosecutor who must establish that the accused is guilty — not the accused who must prove innocence. This reflects one of the basic principles of law: that a person is considered innocent until the contrary has been proven.

The standard of proof — that is, the level of certainty the evidence must reach — varies depending on jurisdiction and the nature of the case. In many common law systems, and before the International Criminal Court (ICC), the prosecution is required to prove the guilt of the accused beyond reasonable doubt in order to obtain a conviction. This is a high standard, deliberately set to protect the accused against unwarranted conviction.

In practice, the placement of the burden of proof is decisive for the outcome of a criminal case. If the prosecution cannot discharge its burden — for example because the evidence is insufficient, contradictory or non-existent — the court must acquit the accused. This applies regardless of any widespread public perception of guilt.

In disappearance cases and unsolved crimes — such as the disappearance of Jenny Pandos in Williamsburg in 1987 — the demands of the burden of proof are particularly prominent. The absence of a body, the lack of physical evidence or of witnesses can make it practically impossible for the prosecution to discharge the burden, even in cases where suspicion is strong. It is precisely this legal reality that in many such cases prevents charges from being brought or a conviction from being obtained.