Burden and standard of proof in cases of entrapment. Part 2. Examination of an entrapment claim on the merits

Source abstract

This article examines the issues of the burden and standard of proof in cases involving allegations of entrapment at the stage of substantive judicial review of such claims. The theoretical framework of the study is based on the concept of a staged approach to examining entrapment claims, as developed in the case law of the European Court of Human Rights, with particular focus on the second stage, which involves the assessment of factual circumstances and their legal consequences. The methodology combines a systematic analysis of the provisions of the Criminal Procedure Code of Ukraine, a review of the case law of the Supreme Court and the European Court of Human Rights, and a comparative analysis of U.S. entrapment doctrine. It is substantiated that once the defence raises an allegation of entrapment, the burden of proving the absence of such entrapment lies with the prosecution. This approach follows from the principle of the presumption of innocence, the obligation of the prosecution to prove the admissibility of evidence, and the general logic of adversarial criminal proceedings. Special attention is paid to the applicable standard of proof. It is argued that, despite the absence of explicit statutory regulation, the absence of entrapment must be proven beyond a reasonable doubt, as such allegations constitute an alternative version of events capable of affecting both the establishment of guilt and the admissibility of evidence. The article further analyses the European Court of Human Rights’ use of the criterion “sufficient degree of certainty”, concluding that it functions as an evaluative indicator of evidentiary sufficiency rather than an independent standard of proof in criminal proceedings. A comparative analysis of U.S. entrapment doctrine confirms the appropriateness of assigning the burden of proof to the prosecution and applying a high standard of proof. As a result, the article formulates a model of proving entrapment at the trial stage, combining the prosecution’s obligation to prove the absence of entrapment with the application of the “beyond a reasonable doubt” standard, thereby ensuring a balance between effective criminal prosecution and the guarantees of a fair trial.