How much is society willing to pay to protect constitutional rights from government infringement? How much constitutional protection is society allowed to forfeit in exchange for more effective law enforcement? The criminal justice system's allocation of the burdens of proof ultimately decides these questions. When do effective law enforcement tactics, such as undercover agent investigations, violate a defendant's sixth amendment right to the effective assistance of counsel? When does the sixth amendment violation warrant judicial remedies? Only the government knows when and how improperly obtained information is ultimately utilized. The adversarial context of American criminal justice dictates allocating to the government the burden of persuasion on the issue of whether an intrusion into the defendant's right to counsel was unconstitutionally prejudicial.
Loretta A. Neary-West,
Right to Counsel: Balancing the Burden of Persuasion on the Adversarial Scales of Criminal Justice,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol26/iss5/10