Submitted by Michael Deal, Apr 15, 2007 14:01

This isn't a total win for the defense: Apparently, the prosecution is taking the position that its up to the defense to prove to the jury that the information is public domain, which would be consistent with the government's earlier position that "Public domain" is an exemption rather than an exclusion, and shifts the burden of proof to the defense just as with an affirmative defense. If treated as jurisdictional, i.e., that DDTC does not have authority to regulate Public Domain, then it would be the prosecutions burden, at least a burden of production (which could then shift the burden to the defense to reut the prosecution), to prove than the information was not public domain and was therefore subject to control, and could be the subject of a motion to dismiss heard by the judge alone rather than being a question for the jury alone. In this case, it sounds like Mak can meet the burden of proof on at least two counts, but that still means that the prosecution gets to present its case in chief without ever having to address the question of whether the information was actually subject to control, until the defense presents sufficient evidence to meet its burden. This gives the prosecution the chance to mold the jury's attitude, and puts the defense in an uphill battle. In theory, instructions from the judge cure this: In reality, it puts a heavy psychological burden upon the defense.

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