Bortom (o)rimligt tvivel? En kritisk granskning av beviskravet i brottmål

Sammanfattning: A fundamental principle in criminal proceedings is that no person should be convicted of a crime he or she has not committed. This is achieved partly by placing the burden of proof on the prosecutor, partly by having a high standard of proof. The standard of proof in criminal proceedings is not regulated by law. Instead, it has been developed and established in court practice. It was in NJA 1980 s. 725 that the Supreme Court established that the prosecutor is required to prove the defendant's guilt beyond a reasonable doubt. The court is therefore obliged to acquit if there may be reasonable and considerable doubt. To have a real possibility of convicting those who are guilty of committing crimes, law and order requires that a certain degree of uncertainty is allowed. The exact extent of the doubt and what is considered “reasonable” has not been defined. It is therefore up to the court to make that assessment. The standard of proof consists of two requirements: a requirement of sufficient support and a requirement of sufficient investigation. The first requirement entails that the evidence must provide sufficient support for the statement of the criminal act as charged, while the second requirement aims at what has been investigated and whether this investigation is sufficient. The requirements are cumulative, which means that both must be met for the defendant's guilt to be beyond reasonable doubt. There are certain cases in which evidential difficulties typically occur. Neither legislation nor court practice provides support for a lowering of the standard of proof solely due to evidential difficulties. In several cases the Supreme Court has underlined the fact that this high standard of proof applies even when evidential difficulties are at hand. Despite this, there are decisions where the Supreme Court has expressed a lower standard of proof without any further justification or reference to specific conditions or circumstances. The conclusion that can be draw from this essay's review is that the high level of the standard of proof is debated, but most often considered to be justified. If innocent people are convicted of serious crimes in more than just exceptional cases, it would mean that we have a justice system that is not functioning in an acceptable way. The starting point is that the high standard of proof must be applied on all types of crime, but certain exceptions do occur in practice.