Burden never shifts to the defense and it is incumbent on a Paulding County criminal defense lawyer to make the state prove every element of their case.
The burden is on the state up until the time of conviction to prove that the defendant is guilty as charged. The burden is never on the defendant to establish his innocence or to disprove the facts necessary to establish the crime.
It has been held that a conviction is never demanded in a criminal case if a defendant denies his guilt in his testimony. In Poole v. State, the court said, "… a verdict [of guilty] is never demanded in a criminal case in the sense that the court may direct a guilty verdict. However, where, …, the defendant makes no statement denying his guilt and the evidence authorizes only a guilty verdict, such verdict is [said to be] demanded in the sense that errors occurring on the trial may be harmless."
The defendant has neither the burden of proof nor the burden of persuasion with regard to proving the offense charged. The burden is on the state to prove every element of the crime charged and every material allegation of the accusation or indictment. The defendant in a criminal case is not required to satisfy the jury of the existence of any fact which, if true, would be a defense to the crime. It is sufficient if, from the presence or absence of the evidence, the jurors have a reasonable doubt as to the guilt of the defendant.
However, the failure of the state to conduct certain examinations or investigations which might have been beneficial to the defendant does not deprive him of a fair trial. The failure of the state to thoroughly investigate is to be distinguished from the destruction of evidence.
The United States Supreme Court in Jackson v. Virginia held the "no evidence" rule unconstitutional in appellate review and held that on appeal a defendant is entitled to a reversal if it is found on the record that "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." See Goger, Daniel's Georgia Criminal Trial Practice (2010–2011 ed.), § 28-8, on the sufficiency of evidence on appellate review.
It is error for a trial judge to charge that where the state has prima facie established the allegations of the indictment, the jury is authorized to convict unless a defense be established by a preponderance of the evidence or to charge that where the state has made out a prima facie case, evidence of a defense must be established to the jury's reasonable satisfaction before they would be authorized to acquit. However, the following charge has been approved: "… the state contends that it has shown that the defendant is guilty …. On the other hand, the defendant says that he is not guilty. He says that he has not offended the laws of the State of Georgia in any way whatsoever and he contends that he is not guilty of any offense."
The Georgia Supreme Court has concluded that a charge which places any burden on the defendant in a criminal case will be deemed erroneous. However, the usual charges on presumptions are not considered burden shifting nor are instructions that such presumptions may be rebutted.
In Shepperd v. State, the court held that it was error for the trial judge to refuse to "charge that where evidence of self-defense is presented the state has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense." The court also pointed out that "[w]here a defendant raises an affirmative defense and testifies to the same, the burden is on the State to disprove the defense beyond a reasonable doubt."
In Simmons v. State, the court, in affirming a conviction, considered several statutes making the possession of certain firearms unlawful. One statute exempted specific law enforcement officers, persons in the military, and district attorneys. The statute additionally provided that the state need not negate any of the exemptions. The court concluded that the statute was not unconstitutional. It "is burden reducing but not burden shifting." The court also pointed out that the trial judge did not charge on any exemptions until he was asked by the jury for a clarifying instruction as to exemptions relating to machine guns. On request, the court simply charged the exemptions.