“You Can’t Say That!”: When Prosecutors Cross the Line and Shift the Burden

By: John Guidry

I’m not a huge baseball fan, but I know this: There are lines you don’t cross.

• Allowed: “Hey Ump, that wasn’t a strike!”
• Ejection: “Hey Ump, you are an [expletive]!”

In baseball, crossing the line gets you sent to the showers. In criminal defense, if a prosecutor crosses the line, the conviction gets sent to the trash. Today, we are talking about the most sacred line in American Justice: The Burden of Proof.

Did the prosecutor argue that YOU should have proved your innocence?

That is illegal Burden Shifting. Call John today at (407) 423-1117.

The Case: Jeansimon v. State (The Missing Witness)

Loucrucha Jeansimon was sentenced to 30 Years in prison for Drug Trafficking.

• The Facts: Jeansimon borrowed a rental car from his sister’s boyfriend, “Jay-Jay,” to pick up his daughter. Police stopped him and found a trafficking amount of drugs.
• The Defense: Jeansimon testified, “The drugs aren’t mine. I borrowed the car from Jay-Jay. I didn’t check the trunk.”
• The Prosecutor’s Mistake: On cross-examination, the prosecutor asked: “Why didn’t Jay-Jay come in here and claim the drugs?”
• The Closing Argument: The prosecutor doubled down, telling the jury that Jay-Jay “did not have the courage to come in and testify that the drugs belonged to him.”

The Error: The Defense Attorney objected. The Judge overruled it (bad move). Jeansimon was convicted.

The Ruling: The Government Has the Burden, Not You

The Appellate Court overturned the 30-year sentence and ordered a new trial. Why? Because the prosecutor engaged in Burden Shifting.

This is the United States of America.

• The Rule: The State has the burden to prove guilt. The Defendant has zero burden to prove innocence.
• The “2 Cents” Analogy: I knew a judge who would hold up the charging document and say: “It cost the State two cents to print this accusation. The burden is entirely theirs to back it up. The Defendant may sit and play cards if they wish.”

Why It Was Illegal: By asking “Where is Jay-Jay?”, the prosecutor implied that Jeansimon had an obligation to produce witnesses to prove his innocence.

• The Court’s Words: “It is error for a prosecutor to make statements that shift the burden of proof… leading the jury to believe that the defendant carried the burden of introducing evidence.”

Sidebar: The “Unauthorized Driver” Defense (Byrd v. U.S.)

This case also settled a huge debate about Standing (the right to challenge a search).

• The State’s Argument: Jeansimon wasn’t on the rental agreement (he was an unauthorized driver). Therefore, he had no “expectation of privacy” and no right to complain about the search.
• The Ruling: Wrong. Relying on the U.S. Supreme Court case Byrd v. United States (2018), the court held that even an unauthorized driver has standing to challenge a search if they had permission from the renter to use the car.

John’s 2026 Update: Digital Standing & Smart Contracts

Note: In 2018, we fought over searching the trunk. In 2026, we fight over searching the “Cloud.”

1. The “Digital Standing” Battle In 2026, cars are computers on wheels. Police don’t just search for physical drugs; they download the car’s Location History and Cabin Recordings.

• The 2026 Question: Does Byrd apply to data? If you are an unauthorized driver, do you have “standing” to stop the police from downloading your Bluetooth contacts from the rental car’s dashboard?
• The Current Law: Courts are split. Some argue that by syncing your phone to a car you don’t own, you “abandoned” that data. We fight this by arguing that Jeansimon and Byrd protect your digital privacy just as much as your physical privacy.

2. Smart Contracts & Automatic Waivers Rental agreements are now “Smart Contracts” on the blockchain.

• The Trap: When the actual renter clicks “I Agree,” they often consent to third-party data sharing (i.e., giving data to police).
• The Defense: We argue that you (the borrower) never signed that smart contract. Therefore, the renter’s consent shouldn’t waive your Constitutional rights.

3. AI Prosecutors & “Missing Evidence” Prosecutors now use AI to analyze defense theories.

• The Danger: If an AI suggests, “The defendant failed to upload his alibi GPS data,” and the prosecutor repeats this in court, it is modern Burden Shifting. We object immediately: My client doesn’t have to upload anything. The burden is on the State.

Don’t Help Them Prove Their Case

The State has all the money, all the investigators, and all the power. But they also have all the burden. You don’t have to prove a thing. If they try to make you do their job, I’ll be there to object.

Call me at (407) 423-1117. Let’s keep the burden where it belongs.

About 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.