The text of the Fourth Amendment to the United States Constitution is as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
A recent case in Colorado involved a search warrant that was unconstitutionally broad. It contained the following description: “Any other items on scene deemed to be pertinent to the investigation.” This is too broad to comport with the requirement in the 4th Amendment that the warrant must particularly describe the place to be searched, and the persons or things to be seized.
The warrant was executed and several items were seized by police. Before trial the defendant filed a motion to suppress from evidence the items that were seized by the police pursuant to the defective warrant.
This should be a no brainer, right? The warrant is too broad, the seized items should be suppressed. Except the defendant’s lawyer confused two legal concepts. Clearly, because the prosecution’s overall burden of proof is high, proof beyond a reasonable doubt, the prosecution bears that burden throughout the trial, including on issues raised by the defendant. So if the defendant claims an affirmative defense such as self defense, the prosecution must ultimately prove that the defendant did not act in self defense. If the defendant claims a warrant was unconstitutional the prosecution has the ultimate burden to prove the warrant was constitutional.
But burden of proof is only one-half of the concept of proof. There is also the order of proof. Courts often say the burden of proof never shifts. It lies upon the party who has it and never leaves. But the order of proof, or the burden of going forward with proof, can shift between the parties depending upon the circumstances.
In this case, the defendant’s motion to suppress made only the bare allegation that “[t]he warrant was executed illegally and the scope of the search exceeded the matters set forth in the warrant.” The trial court granted the motion to suppress and the Supreme Court reversed. The prosecution argued that the defendant failed to come forward with evidence to make a prima facie case that the warrant was unconstitutional. Only then, the prosecution argued, would it need to come forward with evidence to refute the defendant’s evidence. That makes sense. That’s how it works with defendants’ affirmative defenses, such as self defense. The prosecutor has the ultimate burden on all issues in a criminal trial.
The trial judge thought that since all the evidence of what was seized was in the control of the prosecution, it should also have the burden of going forward with evidence to support the warrant and the search and seizure. The Supreme Court said no, and that also makes sense because in all other issues where the defendant claims some sort of relief, avoidance or justification, the defendant must first offer some credible evidence to support it’s claim.
The case is People v. Cunningham (Colo. December, 2013).
These concepts apply equally in a civil case where the burden of proof is merely a preponderance of the evidence. The burden of proof doesn’t shift, only the burden of going forward with evidence. The only difference it that since the prevailing party’s burden is no more than a preponderance, neither gets any benefit of the doubt. The jury is allowed to render its verdict for the party which they believe shifted the scales to its favor, however slightly.
This intellectual exercise is not just a trial procedural issue for lawyers. It is also a point of logic and argumentation. When some says something is so, it isn’t someone’s else duty to prove it’s not so. The proponent’s must first offer something to establish that it’s so before anyone else is called on to counter the argument. That was always what was wrong with the man-made global warming argument. First, the warming alarmists just said it was so. When called on to prove it they offered doctored evidence such as Michael Mann’s phony hockey stick graph. When others responded to that evidence by showing the graph was based on made-up statistics, Michael Mann sued them for slander. Predictably, he seems to be losing those cases.