S. v Elrod, 1971). The prosecution must also bear the burden of proof in cases where the defendant has challenged whether they actually gave consent to search or not. "On defendant's motion to suppress evidence obtained by alleged illegal warrantless search of her home, government was required to prove by preponderance of evidence that defendant gave voluntary and effective consent to search" (U.S. v Hurtado, 1990).
The Fifth Amendment is one of areas of the Constitution that implies the burden of proof. The due process clause protects the accused from conviction unless the prosecution can fulfill their burden of proof with clear and undeniable evidence. The due process clause of the can be drawn from this line in the Fifth Amendment " nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law .".
In a case where a defendant has waived his or her fifth amendment right against self-incrimination the burden is on the prosecution to prove "that the defendant was effectively warned of his rights and that he then intelligently and understandingly declined to exercise them by making statement"(U.S. v Micieli, 1979). "If the defendant talks to police after being advised of his Miranda rights, government bears burden of proving by preponderance of evidence that waiver of right was voluntary" (U.S. v Toro-Pelaez, 1997). "Government bears burden of proving that defendant's waiver of Miranda rights was voluntary by preponderance of evidence in sense that it was product of free and deliberate choice" (U.S. v Gell-Iren, 1998). "Even though defendant initially executes waiver of rights, it still remains burden of prosecution to prove by preponderance of evidence that his subsequent incriminating statements were voluntarily given, as prerequisite to admission thereof as evidence against him" (State [Iowa] v Jump, 1978).