Document Type

Article

Publication Date

10-2025

Abstract

The Supreme Court’s haphazard approach to allocating burdens of proof in criminal procedure has created a system in which constitutional rights can be rendered meaningless simply because defendants are required to prove things they cannot possibly know. Even though allocations of the burden of proof often drive litigation outcomes, the Court has failed to establish clear burden allocation structures for cases arising under the Fourth, Fifth, Sixth, and Fourteenth Amendments, leaving lower courts split about how to allocate the burdens. When the Supreme Court does allocate burdens, it often does so without explanation or consideration of key factors. Recent Supreme Court decisions have exacerbated the problem by subtly shifting burdens of proof to defendants without acknowledgment or justification, creating practical challenges for defendants who lack access to the information necessary to meet those burdens.

This Article provides a framework for analyzing burden allocation in criminal procedure under both federal and state law. It unpacks three categories—efficiency interests, fairness issues, and policy concerns, describing the factors within each category and discussing how each factor has informed and should inform the allocation of criminal procedure burdens. It argues that courts and legislators often overemphasize efficiency interests and policy concerns about system preservation at the expense of fairness and constitutional values. The Article then proposes solutions including strategic burden-splitting and burden-shifting regimes and a greater emphasis on fairness factors and rights-specific interests when allocating burdens of proof in criminal procedure.

Comments

Originally published as Eve Brensike Primus, Burdens of Proof in Criminal Procedure, 75 Duke Law Journal 61-132 (2025) Available at: https://scholarship.law.duke.edu/dlj/vol75/iss1/2

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