The “No Case” Submission

The test for a No Case Submission, whether in civil or criminal trials is the Civil test…that is, a balance of probabilities. 

The prosecution does not have to prove its case beyond a reasonable doubt, it simply needs to present evidence so that on the basis of all evidence presented and cross examined so far, there is a case to answer.

As the test for Civil liability is the same in a no case submission  as it is for conviction, the failure of a no case submission requires the Defence to put up their case.  As the test in Criminal proceedings is different, the Defense counsel can have the accused remain silent, or close the case as it stands.

This means that in a civil case, the Defence has to do something to prevent being found guilty as the Plaintiff has discharged their burden.  In a Criminal case, however, the Prosecution has not discharged their burden of beyond a reasonable doubt. 

It is possible, and has happened on many occasions, that the judge in a criminal trial, may find that on a ‘balance of probabilities’ the Prosecution has proven their case, but, as the burden of proof for conviction is Beyond a Reasonable Doubt, the evidence presented so far without more does not discharge that burden.

Wise Defense counsels can weigh the evidence against their client, aware that the judge is to find a ‘case to answer’ if the Prosecution has proven their case on a balance of probabilities, but can not find the accused guilty, as the evidence is not strong enough to dispel a reasonable doubt. 

In this case, the wise defense counsel will either inform the Court that ‘the accused remains silent’ or that, s/he closes her/his case without presenting a single bit of evidence.

The judge at that moment would either rule that there is not enough evidence to find a conviction, and direct the jury to find a not guilty verdict, or, if Defense counsel has erred in the premature termination of the trial, send the jury out without any instructions beyond those which demand no conviction unless a case is proven beyond a reasonable doubt.

Hence in Civil Trials, where the court rules against a No Case Submission, the Defence must put up a defense. In Criminal Trials, even though the court has dismissed the No Case Submission, the Defence can chose to remain silent and be exonerated.

Lawyers who have only made No Case Submissions as a matter of form will begin to put forward their case. Those who really believe that there is no case to answer, and who, in Criminal trials have had their submission rejected, might opt not to put up a case, certainly not to put the defendant on the stand, for he might very well fill in the blank spots of the Prosecution’s case.

No Case Submissions are not for the squeamish. One has to know, not guess, not assume, but know that there is no case in law to be answered, and recognising the different burdens of proof, act accordingly.