chapter three

Burden of Proof, Standard of Proof

and Evaluation of Evidence

3.1 Introduction

The present chapter deals initially with fundamental concepts and

approaches in evidence law. This is followed by questions of burden of
proof, standard of proof and evaluation of evidence.

3.1.1 Facts in Issue and Evidentiary Facts

Evidence is a relative concept signifying a relationship between two facts,
the fact in issue ( factum probandum), or proposition to be established,
and the evidentiary fact ( factum probans), or material supporting the
proposition. The former is necessarily hypothetical; the latter is brought
forward as a reality for the purpose of convincing the tribunal that the
former is also a reality.1
The facts in issue covered by the indictment (i.e. the accusation) relate
to circumstances that need to be established. A fact in issue in criminal
proceedings is to be sought in substantial, and not procedural, law. A fact
in issue may refer to the actus reus (objective element) as well as the mens

1 John Henry Wigmore, The Principles of Judicial Proof, as Given by Logic, Psychology and
General Experience, and Illustrated in Judicial Trials, (Little, Brown, and Company, Bos-
ton, 1913), 5. The concept “evidentiary theme” is sometimes used as an equivalent concept
to “fact in issue”. Ekelöf calls factum probandum “the theme of the proof ” and a “piece
of evidence” is an evidentiary fact, Per Olof Ekelöf, “My thoughts on evidentiary value”,
Peter Gärdenfors, Bengt Hansson & Nils-Eric Sahlin (Eds.), Evidentiary value: philosophical,
judicial and psychological aspects of a theory: essays dedicated to Sören Halldén on his six-
tieth birthday, 9–26, 15, (C.W.K. Gleerups, Lund, 1983) (Library of Theoria), 11. Evidentiary
theme is defined as “the fact to be proved” and “evidentiary fact” is defined as “the piece
of evidence which is being evaluated” by Bengt Hansson, “Epistemology and Evidence”,
Peter Gärdenfors, Bengt Hansson & Nils-Eric Sahlin (Eds.), Evidentiary value: philosophi-
cal, judicial and psychological aspects of a theory: essays dedicated to Sören Halldén on his
sixtieth birthday, 75–97, 15, (C.W.K. Gleerups, Lund, 1983) (Library of Theoria), 75–76. See
also Katrin Leinpelto, Stödbevisning i brottmål, (Jure Förlag AB, Stockholm, 2012), 63 who
argues that an evidentiary fact shall correspond to the actual facts in issue of the case, i.e.
the evidentiary theme.
116 chapter three

rea (subjective element) of a crime. Circumstances in the indictment are

facts in issue which answer questions such as when? where? how? and by
whom? The indictment may consist of several facts in issue. The indict-
ment has a delineating function on the evidence required for a conviction
because only stated facts in issue are covered by the indictment.2 The
Court may and arguably should, dismiss questions to witnesses and docu-
ments relating to circumstances not covered by any proposition.3
The traditional approach is that evidentiary facts may consist of “direct”
evidence, for example the observation of the criminal act by the witness.
Other evidence may have an indirect effect on the evidential proposition,
namely circumstantial evidence. Circumstantial evidence is evidence of
circumstances surrounding an event or an offence from which a fact in
issue may reasonably be inferred.4 However, several scholars argue that
the traditional direct-circumstantial distinction is an illusion and/or that
circumstantial evidence is less useful as a legal concept. This does not
mean circumstantial evidence should be excluded or that established
concepts such as direct evidence and circumstantial evidence should no
longer be used, but they should be treated equally.5 Greenstein argues
the following:
The problem with the direct-circumstantial distinction is not simply that
common beliefs about the significance of the distinction are false. A more
fundamental problem is that the distinction, while perhaps appealing on
the level of intuition, makes no logical sense. There simply is no category
of evidence that brings us into direct contact with crucial facts because no
such contact is possible. All facts are a function of interpretation, and this
unavoidability of interpretation makes all facts a matter of inference and all
evidence, whether called “direct” or “circumstantial,” nothing more or less
than a contribution to that inferential process.6

2 Lena Schelin, Bevisvärdering av utsagor i brottmål, (Norstedts Juridik, Stockholm,

2007), 42–43.
3 The Trial Chamber in Lubanga states that the charges and any amendments thereto
establish the factual scope of the Judgment, Lubanga, ICC T. Ch., 14 March 2012, para. 3.
4 Black’s Law Dictionary, 2004, 595; May and Powles, 2004, 3–4; Schelin, 2007, 48;
Adrian Keane, The Modern Law of Evidence, Seventh edition, (Oxford University Press,
Oxford, 2008), 6–7.
5 Per Olof Ekelöf, Henrik Edelstam & Lars Heuman, Rättegång IV, Seventh Edition,
(Norstedts Juridik, Stockholm, 2009), 24–25; Richard K. Greenstein, “Determining Facts:
The Myth of Direct Evidence”, Houston Law Review, vol. 45 2008–2009, 5 (2009), 1804; Lein-
pelto, 2012, 140–153, 314.
6 Greenstein, 2009, 1804.