The Burden of Proof and the Standard of Proof: a Critical Analysis of The Defense of Insanity

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Nkulukusa, Milao F.
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The dissertation critically analyses the insanity defence in relation to the burden of proof and the standard of proof and examines the effect of the shift in the burden of proof on the presumption of innocence. The dissertation starts by outlining the philosophical foundations behind the insanity defence and explains the reasoning and the rationale behind the same. The dissertation further examines the insanity defence and its implications on the criminal law principle of presumption of innocence. The paper goes on to expose the various problematic areas that arise out of the defence of insanity and the inherent problems inherent in the adoption and application of the defence in its current form in a society like Zambia. The dissertation, through research and analysis found that shifting the burden of proof on the accused when the defence is raised is in contravention of the presumption of innocence as guaranteed by the Constitution, Cap 1 of the laws of Zambia. The dissertation further found that the standard of proof placed on the accused person is actually a much higher standard that just on a balance of probabilities (though it is still lower than beyond all reasonable doubt. The paper argues that the accused may still be convicted even if they prove on a balance of probability that they laboured under disease of mind.The dissertation further found that it is not in the interest of justice in a society like Zambian to apply the defence in its raw common law form. Thus the various problems inherent in the defence have been discussed including the lack of a legal code (in form of an Act of Parliament) regulating the detention, care, treatment and the custody of persons detained during the pleasure of the president. The problem shortage of trained personnel and specialised facilities has been raised as being among the main challenges that arise as a result of the defence.As such the paper makes recommendations to the effect that there must a total remodelling of the law so as to harmonize the defence with the current constitutional arrangement in Zambia. The dissertation has called for a tailor made legal code to reflect the particular needs of the Zambian. Public awareness on the subject has been called for.
Burden of Proof (insanity) - Zambia