Tim O'Toole comments on the recent Supreme Court decision in Smith v. United States, in which the court ruled a defendant bears the burden of proving that his withdrawal from a conspiracy renders his prosecution untimely.  O'Toole submitted an amicus curiae brief in this case.  According to O'Toole, the narrow holding in this case "is disappointing, as it establishes yet another government-friendly rule in conspiracy cases."

However, he predicted that "the most far-reaching impact of today's decision is likely to be what the court says ... with regard to the government's burden to disprove element-negating defenses." Noting that some lower courts have attempted to shift the burden of persuasion onto the defendant in such cases, he said, "By carefully limiting its holding to cases involving withdrawal from a conspiracy, while at the same time confirming the traditional rule that the government bears the burden of proof with regard to element-negating defenses generally, the Court's opinion today has helped restore the proper allocation of proof."