The issue of the burden of proof for the defense of duress has not yet been decided by the Oklahoma Court of Criminal Appeals. It is the opinion of the Commission, however, that, once the defense of duress is properly raised, the burden of proving the nonexistence of the defense of duress should properly rest on the State. Cf. Mullaney v. Wilbur, 421 U.S. 684 (1975). This would make the defense of duress consistent with other defenses, such as self-defense, intoxication, and insanity, in which the Court of Criminal Appeals has specifically held that the burden of proof is upon the State.

Duress is a defense, however. Thus, the Commission has emphasized that the defendant must come forward with evidence concerning duress, unless the evidence of the prosecution has raised the issue. If the defendant fails to come forward with evidence of duress, or fails as a matter of law to come forward with sufficient evidence, the issue of duress is not raised in the trial and the trial judge should not instruct on duress. If the defendant presents sufficient evidence to raise the defense of duress, or if the evidence of the prosecution raises the issue of duress, the trial judge should instruct the jury on duress because the trial judge has a duty to instruct on the defendants' theory of the case. No instructions on the defendant's burden to come forward with evidence, or on whether the defendant has presented sufficient evidence, are presented because these matters are questions of trial procedure and of law, and are beyond the legitimate concern of the jury.