May 20, 2019

Colorado Supreme Court: Prosecutor’s Comments Implying that Defendant Has the Burden of Proof Does Not Necessarily Shift the Burden; Courts Must Evaluate the Strength of the Evidence

The Colorado Supreme Court issued its opinion in People v. Santana on June 27, 2011.

Shifting the Burden of Proof—Prosecutorial Questioning and Commenting.

The Supreme Court held that a prosecutor’s comments and questions implying that a defendant has the burden of proof do not necessarily shift the burden of proof. Instead, courts must evaluate the strength of the burden-shifting evidence or comment, considering the degree to which: (1) the prosecutor argued or intended to establish that the defendant bears the burden of proof; (2) the prosecutor’s actions constituted a fair response to the questioning and commenting by defense counsel; and (3) the jury was informed of the defendant’s presumption of innocence and the prosecution’s burden of proof.

The Supreme Court reversed the judgment of the court of appeals, concluding that the prosecutor did not shift the burden of proof by questioning a defense expert about his ability to conduct tests possibly exonerating defendant, because defense counsel first asked similar questions. Further, in light of the whole record, the prosecutor’s questions and comments likely were not meant to shift the burden of proof, but to highlight the strength of the prosecution’s case.

Summary and full case available here.

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