Reversible Error: When a Prosecutor Shifts the Burden of Proof in Orlando

t’s tough losing a case. It’s a great feeling, however, when a conviction gets overturned on appeal—especially when it’s because the prosecutor made a critical mistake. Every Orlando defense attorney has been in a trial where a prosecutor has said something they shouldn’t have. But at what point do those words cross the line and cause an appellate court to order a new trial?

Let’s look at a real-life example of a prosecutor’s words doing just that.

Believe the Prosecutor Crossed a Line in Your Orlando Trial? Improper comments that mislead the jury can be grounds for a new trial. Call my office to discuss your appellate options. Call John Guidry: (407) 423-1117

A Real-World Example: The Publix Shoplifting Case

The case of Covington v. State, 75 So.3d 371 (Fla. 4th DCA 2011), started as a simple grand theft case for shoplifting groceries from a Publix.

• The Defense Argument: At the end of the trial, the defense attorney made a classic and perfectly legal argument. He pointed out to the jury that the State had failed to produce a surveillance video of the incident, and this absence of evidence could create a reasonable doubt.
• The Prosecutor’s Reversible Error: In response, the prosecutor told the jury: “Gosh, video that existed, it was a surveillance, State didn’t show it to you. Well, you know what? They could have got it too. They could have shown it to you.”

This comment, which may sound reasonable to a citizen on a jury, is a serious violation of a defendant’s constitutional rights.

The Legal Rule: The Burden of Proof NEVER Shifts

The prosecutor’s argument was wrong for two fundamental reasons:

1. The State has the sole burden of proving the case. The lawsuit was brought by the State, and it is their job, and their job alone, to present the evidence.
2. The defendant must prove absolutely nothing. A defendant never has an obligation to present any evidence, including a video that might prove their innocence.

The prosecutor’s blabbing misled the jury into thinking that the defendant had some duty to produce the video. That is not the law. The court in Covington made this clear, citing the Florida Supreme Court case of Hayes v. State, 660 So. 2d 257, 265 (Fla. 1995), for the rule that:

The “state cannot comment on a defendant’s failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe the defendant carried the burden of introducing evidence.” Id.

Because the prosecutor’s comment improperly shifted the burden of proof to the defense, the appellate court overturned the conviction.

John’s Takeaways

• In any criminal trial, the burden of proof is always on the State. The defendant never has to prove their innocence or present any evidence.
• It is a reversible error for a prosecutor to comment on a defendant’s failure to produce evidence, as this improperly suggests the defendant has something to prove.
• This error is called “improperly shifting the burden of proof” and can lead to a conviction being overturned on appeal.
• As the Covington case shows, even in a simple shoplifting case, a prosecutor’s improper words can violate a defendant’s constitutional rights and result in a new trial.
• A skilled trial attorney must be ready to object to these improper comments to protect their client and preserve the issue for appeal.

I have been trying cases and holding prosecutors accountable for their words in the courtrooms of Orange, Seminole, Osceola, Lake, Brevard, and Volusia County since 1993. If you are facing a trial, you need an attorney who knows the rules of a fair fight.

About the Author, John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.