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Burden of Proof in Criminal cases




A crime is an act or omission prohibited by state laws and is declared by such law to be an offence, and violation of same constitutes an offence. In other words, crime is also an offence committed against the criminal law of the state by an individual or group of individuals.

A crime or offence can be committed by act or omission as long as the act or omission is prohibited and punishable under the law.



There are two elements of crime:

a. Mens Rea.

b. Actus reus.


The two Latin words “mens Rea” refers to the mental element of a crime. Mens Rea is better interpreted to be the “intention” of the accused person at the time when he or she committed the crime.

The fundamental question in determining whether one truly committed the crime is what was his intention? Did he really deired the result of his action or ought to know that the result will happen?

Intention alone is not a crime save for where statute expressly state it to be a crime. It is the actual manifestation of intention that constitutes a crime.

But intention is vital, because it reveals what the accused person actually desired to do before manifesting same. The intention in this regard can be inferred from the fact and circumstances of each case.

Example: if Mr A hits Mr B on his head with Iron or cutlass or shoots him with gun and B dies, there is clear intention to kill Mr B by A in these circumstances. But if Mr A slaps Mr B, or flogs him once, and he dies, there is no clear intention that Mr A intended to cause the death of Mr B. A charge of murder may fail, while manslaughter may succeed against B.

For crime to be successfully proved, intention must be established, that the accused desired or ought to know that the action intended will be an offence. It is always difficult to establish intention, after all, Bryan CJ said ” Even the devil knoweth not the intention of man” However, not all offence requires intention to be proved. Example offence of strict liability.

B. Actus Reus
The mens Rea is the act itself that constitutes the offence. It is the physical elements of an offence. In other words, it is the action of the person or persons that constitutes the offence as opposed to the intention of the  person. While mens Rea(intention) cannot be seen but inferred, Actus reus can be seen and verified.

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In the examples above, the Actus reus, is the stabbing, the slap, the. flogging, the matchet cut etc


Crime can be proved in any of the following ways:
a. Direct evidence
b. Circumstantial evidence
c. Confessional statement.

Direct evidence is the evidence of the fact in issue which can be seen, heard or perceived by anyone.

Under the Evidence Act, 2011, direct evidence can be established by oral evidence of a witness who saw the fact if the fact can be seen, evidence of a witness who heard the fact if it can be heard, evidence of a witness who perceived it if it can be perceived or if it refers to Opinion, evidence of a person who held such opinion. SEE SECTION 126 OF THE EVIDENCE ACT 2011.

Example of direct evidence includes: a. Evidence of a witness who saw the accused person committing the crime such as murder, stealing, raping a woman etc..and this is one of the credible means that crime can be proved.

Where direct evidence is required to proof crime, any other evidence other than direct evidence becomes hearsay evidence which is not admissible, though exceptions abide.

Consequently, evidence of accused person who saw, heard or perceived must be uncontroverted in the cause of cross-examination for the court to rely on it to ground conviction.

This is also referred to as indirect evidence and it is one of the ways through which crime can be proved. Circumstantial evidence are set of evidence or pieces of evidence before the court from which the court can infer that the defendant committed the crime alleged or from which the court can resolve the fact in issue.

Example: Mr A was last seen with Mrs B going to the forest. Few minutes later, Mr. A came back with blood stain, and few hours later, Mrs B was found dead. Though A was not seen, killing B, but from the circumstances, he can be inferred to have killed B until proven otherwise.

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For circumstantial evidence to be enough to ground conviction, the pieces of evidence must be cogent, complete, unequivocal , positive and irresistibly point to the accused person as the one who committed the crime.
The circumstances leading to  conclusion that the accused and no other person truly committed the crime must be unbroken.

However, circumstantial evidence, can only be relied upon, where there is no direct evidence.


Confessional statement is a statement made by an accused person stating or suggesting the inference that he committed the crime.  See Section 28 of the Evidence Act 2011.

When an accused person admit in writing or his plea to have committed a crime, this is the best evidence and court can convict him on his confessional statement. Except where the statement is disputed or alleged to have be made under duress or undue influence.
But once an accused persons confessional statement is voluntarily made and true, the court can convict the accused base on the statement. It is immaterial if the confessional statement is inconsistent with his evidence in court. See the case of Asekere v State(2022) 7 NWLR (PT.1829) p.263.


There are two types of burden of proof, namely: The legal burden of proof and evidential burden of proof.

Legal Burden of Proof

This is the burden of proof imposed on the prosecution by law, to establish the guilt of an accused person.

At all material time in criminal proceedings, the legal burden of proof rests on the State( the prosecution). That is, the burden of establishing the guilt of an accused person lies on the prosecution. The only way the prosecution can do this is by proving all the essential elements of the crime alleged by either direct evidence, circumstantial evidence or by confessional statement voluntarily made by the accused person.
This burden is placed on the prosecution by law and does not shift.


Evidential burden is the burden of establishing facts within the knowledge of the maker. This burden rests on he who asserts. This burden unlike legal burden, shifts. The law is that he who alleges the existence of a particular fact which he wishes the court to believe, must prove such fact before the court. See SECTION 136 and 140 of the Evidence Act 2011.

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Consequently, if an accused person alleges that he was insane when he committed the crime, the burden of proving insanity rests on him and not on the prosecution.
In the same vein, the burden of proving exemption, defence of intoxication, qualification, exceptions, also rest on the defendant who alleges. The burden of also establishing pardon, autrofois convict or acquit rest on the Defendant..


The standard of proof required in criminal trial on the part of the prosecution is proof beyond reasonable doubt while the accused person can only proof his innocence by casting reasonable doubt on the case of the prosecution. This is in line with section 135(3) of the Evidence Act 2011.

What does this proof beyond reasonable doubt mean?

Proof beyond reasonable doubt means proof by cogent, compelling and conclusive evidence  that a reasonable person will conclude that the accused person truely committed the crime.

In the case of Fabian Nwaturuocha V state, the court defined the term reasonable doubt as follows:

Proof beyond reasonable doubt does not mean proof beyond doubts or all shadows of doubt. It means establishing the guilt of an accused person with
Compelling and conclusive evidence to a degree of compulsion which is consistent with high degree of probability”

In another case of LAWAN V FRN(2022) 7 NWLR PT.1829 P.298, the court stated:

The law has opted for the expression beyond reasonable doubt. In proving a case beyond reasonable doubt, the quality of evidence matters alot because if the evidence is strong against the accused person as to leave only a remote possibility in his favour which can be dismissed with ” of course it can be possible but not probable , then the case is proved beyond reasonable doubt”

By virtue of Section 135 of the Evidence Act 2011, for the prosecution to succeed in it’s case, and ground a conviction, the prosecution must establish beyond reasonable doubt that the accused person committed the crime. Any iota of doubt whatsoever is resolved in favour of the accused person. SEE THE CASE OF OGUNDIYAN V STATE(1991) 3 NWLR (PT181) 519


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4 thoughts on “Burden of Proof in Criminal cases

  1. Sir, very educative write up! It actually makes Criminal Law a bit easier to comprehend as beginners.

    Please, explain more on “He who asserts must prove” How can this be done by the Defendant.

    Thank you.
    Anticipate more blog posts!

    1. Ngwu michael says:

      Thank you Chisom. We will update you on your request.

  2. Thank you Sir!
    This quite educative and easy to understanding.

  3. Top ,.. top top … post! Keep the good work on !

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