Section 21.8 Burden of Proof

• Library: Criminal Practice 2012 Supp

C. (§21.8) Burden of Proof

The defendant must bear the heavy burden of showing facts sufficient to establish the grounds for the motion. See:

State v. Briscoe, 646 S.W.2d 424 (Mo. App. W.D. 1983);

State v. Mooring, 445 S.W.2d 303 (Mo. 1969);

State v. Hutchens, 604 S.W.2d 26 (Mo. App. S.D. 1980);

State v. Montjoy, 587 S.W.2d 624 (Mo. App. S.D. 1979);

State v. Camillo, 610 S.W.2d 116 (Mo. App. W.D. 1980).

Mere statements of counsel are not sufficient and do not prove themselves. See, e.g., State v. Dowe, 432 S.W.2d 272 (Mo. 1968). See State v. Smith, 467 S.W.2d 6 (Mo. 1971), in which a showing of statistical possibilities plus testimony of county officials responsible for jury selection showing intentional exclusion of women made out a prima facie case of systematic exclusion of women and shifted the burden to the state. It should be noted, however, that there is no per se constitutional right to have a jury composed of persons of the defendant’s own racial, gender, religious, economic, educational, or cultural background. State v. Gray, 478 S.W.2d 654 (Mo. 1972); State v. Strawther, 476 S.W.2d 576 (Mo. 1972). Rather, the law contemplates that a random selection process, free of improper discrimination, will produce a jury made up of a fair and representative cross-section of the community.

In a challenge based on the assertion that an unconstitutional discriminatory selection process was used, the defendant establishes a prima facie case by showing that there has been an intentional exclusion of a legally cognizable group (i.e., an identifiable class within the community, without which the jury does not represent a fair cross-section of the community) and that this exclusion constituted a...