Reverse Burden of Proof and Expert Evidence in Supreme Court Export Control Convictions

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Suppose an individual engaged in the export of a large consignment of a grain-derived product from a town in central India to a port on the western coast. The export was carried out under a permit that had been amended to authorize the shipment of a specific variety of the product, identified in the permit by the terms “refined grain-flakes”. After the shipment, the investigating agency alleged that the exported material did not correspond to the description “refined grain-flakes” but was, in fact, a lower-grade, unprocessed grain known colloquially as “raw kernels”. The agency filed a charge-sheet invoking a wartime essential supplies statute that prohibited the export of such raw kernels without a valid permit, and also alleged offences under the penal code for forging a document and cheating the railway authorities to obtain transport wagons.

The trial court, a first-class magistrate, convicted the accused on three counts: (i) contravention of the essential supplies provision, (ii) cheating under the penal code, and (iii) use of a forged permit. The magistrate imposed imprisonment, a monetary fine and an order of forfeiture of the exported goods. The accused challenged the convictions before the appellate court, arguing that the amended permit, which was produced at trial, satisfied the statutory requirement of a valid permit and that the prosecution had failed to prove that the exported material fell outside the description covered by the permit. The appellate court set aside the convictions for cheating and forgery but upheld the conviction under the essential supplies provision, holding that the prosecution had established that the commodity was not “refined grain-flakes”.

Unsatisfied with the appellate decision, the accused filed a petition for special leave to appeal before the Supreme Court of India. The petition raised several intertwined issues: the proper allocation of the evidential burden when a statutory scheme expressly places the burden of proving the existence of a valid permit on the accused; the admissibility and weight of expert testimony in the absence of a legislative definition of “refined grain-flakes”; the adequacy of the appellate court’s finding that the commodity was “raw kernels”; and the broader question of whether a conviction can be sustained where the prosecution’s case rests on speculative technical analysis rather than clear statutory standards.

At the heart of the dispute lies the statutory framework governing the export of essential foodstuffs during a period of scarcity. The relevant provision of the Essential Supplies (Temporary Powers) Act, 1946, read with a contemporaneous export restriction order, prohibited the export of certain grains and their products without a permit issued by the Director of Food Supplies. Section 15 of the Act expressly reversed the ordinary common-law burden of proof, requiring the accused to produce a valid permit. Once the permit is produced, the onus shifts to the prosecution to demonstrate, beyond reasonable doubt, that the exported material does not fall within the description authorized by the permit.

In the present fictional scenario, the accused produced an amended permit that, on its face, authorized the export of “refined grain-flakes”. The prosecution, unable to produce a statutory definition of that term, relied on the testimony of a government laboratory officer who had analysed a sample of the exported material. The officer’s report indicated that the sample contained 78 percent of the primary grain component, a figure below the 95 percent threshold that the prosecution argued was required for the product to be classified as “refined”. However, the export restriction order contained no definition of “refined grain-flakes”, nor any prescribed percentage of grain content that would demarcate the refined product from the raw kernels.

During the trial, several witnesses called by the prosecution—officials from the railway, a senior food-supply officer, and a local trader—testified that the material they had observed could be described as “grain-flakes” or “refined grain-flakes”. Their statements, while not conclusive, suggested that the commodity bore the hallmarks of the product described in the permit. The defence counsel, on cross-examination, elicited admissions that the witnesses themselves were not experts in distinguishing refined from raw grain, and that their descriptions were based on customary usage rather than technical criteria.

The appellate court, however, placed greater reliance on the laboratory report, concluding that the lower grain content indicated that the material was “raw kernels” and therefore outside the scope of the permit. It held that the burden of proof had not shifted to the prosecution because the accused had not proved, by a preponderance of evidence, that the exported material was indeed “refined grain-flakes”. This reasoning was contested in the special leave petition, which argued that the statutory scheme required the prosecution to discharge the burden once the permit was produced, and that the prosecution’s evidence was insufficient to overcome the reasonable doubt created by the ambiguous terminology.

The petition before the Supreme Court of India therefore seeks a comprehensive review of the evidentiary and procedural aspects of the case. The reliefs sought include: (i) quashing of the conviction under the essential supplies provision; (ii) setting aside the fine and the order of forfeiture; (iii) a declaration that the burden of proof, as mandated by Section 15 of the Act, was discharged by the production of the amended permit; and (iv) an order directing the return of any amounts already paid by the accused. Implicit in the petition is a request for clarification of the legal principles governing the allocation of the evidential burden in cases where the statute imposes a reverse burden, and for guidance on the admissibility of expert testimony where the legislature has left key terms undefined.

From a procedural standpoint, the case illustrates the layered avenues of criminal-law redress available before the apex court. After the conviction at the magistrate’s level, the accused exercised the right of appeal to the High Court, which is the ordinary forum for reviewing findings of fact and law. Dissatisfied with the High Court’s partial relief, the accused invoked the special leave jurisdiction of the Supreme Court of India under Article 136 of the Constitution, a discretionary power exercised only when the case involves a substantial question of law or a grave miscarriage of justice. The special leave petition serves as a gateway for the Supreme Court to examine whether the lower courts correctly applied statutory provisions, interpreted ambiguous terminology, and adhered to the constitutional guarantee of a fair trial.

Should the Supreme Court entertain the petition, it may consider a range of remedies. Apart from quashing the conviction, the Court could entertain a review petition if the judgment were rendered on a manifest error of law, or a curative petition if the petitioners allege a violation of the principles of natural justice. However, the primary focus of the present petition is the special leave stage, where the Court assesses whether the issues raised merit a full hearing. The Court’s analysis will likely centre on the interplay between statutory construction, the evidentiary burden, and the role of expert testimony in the absence of legislative definitions.

The factual matrix of this hypothetical case mirrors many real-world disputes where regulatory statutes employ technical language without precise definitions. The Supreme Court’s jurisprudence has consistently held that, in such circumstances, the benefit of doubt must be given to the accused, and the prosecution cannot rely on conjectural expert opinions to fill legislative gaps. The present petition therefore raises a pivotal question: can a conviction stand when the prosecution’s case hinges on an expert’s percentage analysis that is not anchored to any statutory benchmark?

Answering this question will have far-reaching implications for future prosecutions under the Essential Supplies Act and similar regulatory regimes. A ruling that emphasizes the necessity of clear legislative definitions before expert testimony can be decisive would compel the legislature to articulate precise standards for prohibited commodities. Conversely, a decision that permits the prosecution to rely on expert analysis in the face of statutory ambiguity could broaden the scope of regulatory enforcement, potentially at the expense of the accused’s right to a fair trial.

In sum, the fictional scenario presented underscores the critical role of the Supreme Court of India in adjudicating complex criminal-law matters that involve statutory interpretation, burden of proof, and evidentiary assessment. The petition before the Court seeks not only personal relief for the accused but also doctrinal clarity on how reverse-burden provisions operate when the legislature leaves essential terms undefined. The outcome will shape the contours of criminal jurisprudence in the realm of essential supplies and export controls, reinforcing the principle that the State must prove every element of an offence beyond reasonable doubt, especially where the law itself is silent on technical classifications.

Question: How does the statutory reversal of the burden of proof operate when the accused produces a valid permit, and what consequences follow if the prosecution fails to prove that the exported commodity falls outside the description authorized by that permit?

Answer: The statutory scheme governing the export of essential foodstuffs expressly places on the accused the initial evidential burden to produce a valid permit. Once the permit is produced, the legal burden shifts to the prosecution to demonstrate, beyond reasonable doubt, that the commodity exported does not correspond to the description covered by the permit. In the present case, the accused produced an amended permit that, on its face, authorized the export of “refined grain-flakes”. This act satisfies the statutory requirement that the accused prove the existence of a permit, thereby discharging the reverse burden. The prosecution’s subsequent task is to establish that the material shipped was “raw kernels” and therefore outside the scope of the permit. The failure to meet this burden has two principal consequences. First, the conviction under the essential supplies provision cannot stand because a core element of the offence – the export of a prohibited commodity without a valid permit – remains unproven. Second, any ancillary orders that depend on the conviction, such as monetary fines and forfeiture of the exported goods, become legally untenable and must be set aside. The Supreme Court, when reviewing such a situation, will examine whether the prosecution presented sufficient evidence to overcome the presumption of innocence created by the permit’s production. If the evidence is speculative, lacks a statutory benchmark, or rests solely on expert opinion without legislative definition, the Court is likely to find that the prosecution has not discharged its burden. Consequently, the appellate or special leave petition will succeed in quashing the conviction, restoring the accused’s property, and reinforcing the principle that the State must prove every element of an offence beyond reasonable doubt once the statutory reverse burden has been satisfied by the accused.

Question: What is the evidentiary value of expert testimony when the legislature has not defined the technical term “refined grain-flakes,” and can such testimony alone satisfy the prosecution’s burden?

Answer: Expert testimony gains evidentiary weight when it interprets technical or scientific matters that lie beyond lay understanding. However, its probative value is circumscribed by the presence or absence of a legislative definition of the term it seeks to explain. In the fictional dispute, the term “refined grain-flakes” is not defined in the export restriction order or any accompanying regulation. The prosecution therefore relied on a laboratory officer’s analysis indicating that the grain content of the exported material fell short of a 95 percent threshold, which the prosecution argued was necessary for a product to be classified as “refined.” Because the statute provides no such percentage, the expert’s conclusion is not anchored to any legal standard. The Supreme Court, in assessing the admissibility and weight of such testimony, will consider whether the expert’s methodology is reliable, whether the data are relevant, and, crucially, whether the expert’s opinion fills a legislative vacuum. When the legislature is silent on a defining parameter, the Court is reluctant to allow the prosecution to create a de facto definition through expert analysis. The reasoning is that doing so would effectively rewrite the statute, a power reserved for the legislature. Consequently, expert testimony, in isolation, cannot satisfy the prosecution’s burden where the statutory term remains undefined. The Court will look for corroborative evidence—such as witness testimony that the commodity was commonly understood as “refined grain-flakes”—to bridge the gap. If such corroboration is absent and the expert’s analysis remains speculative, the prosecution’s case will be deemed insufficient to overcome the reasonable doubt. The practical implication is that regulatory statutes must provide clear criteria for technical classifications; otherwise, the State’s reliance on expert opinion alone is unlikely to sustain a conviction at the Supreme Court level.

Question: In the context of a conviction based on a statutory provision that imposes a reverse burden, how does the Supreme Court evaluate the adequacy of the appellate court’s finding that the accused failed to prove the nature of the commodity by a “pre-ponderance of evidence”?

Answer: Criminal law imposes the standard of proof beyond reasonable doubt on the prosecution for every element of an offence. When a statute reverses the burden, the accused must first produce a permit; thereafter, the prosecution bears the ultimate burden of proof. An appellate court, however, may mistakenly apply a civil standard such as “pre-ponderance of evidence” to assess whether the accused has proved the nature of the commodity. The Supreme Court scrutinises such an approach because it dilutes the criminal standard required for conviction. In the present scenario, the appellate court concluded that the accused had not proved, by a pre-ponderance of evidence, that the exported material was “refined grain-flakes.” This assessment effectively shifted the burden back onto the accused to establish a negative, contrary to the statutory scheme. The Supreme Court will evaluate whether the appellate court correctly identified the point at which the burden shifted and whether it applied the appropriate criminal standard thereafter. If the appellate court treated the burden as one of proving a fact in the accused’s favour, it would have erred. The Supreme Court will therefore examine the record to determine whether the prosecution presented evidence sufficient to raise a reasonable doubt about the commodity’s classification. If the prosecution’s case rests on expert testimony without statutory definition, the Court is likely to find that the evidence does not meet the criminal standard. Consequently, the appellate finding that the accused failed to prove the commodity’s nature by a lower standard will be set aside, and the conviction will be quashed. This reinforces the principle that once the reverse burden is discharged by the accused, the prosecution must meet the higher criminal standard, and any appellate deviation from this standard is subject to correction by the Supreme Court.

Question: What procedural remedies are available to the accused after a conviction is upheld by the High Court but the Supreme Court grants special leave, and how might the Court’s discretionary power under Article 136 shape the outcome?

Answer: When a conviction is affirmed by the High Court, the accused may seek further redress through the special leave jurisdiction of the Supreme Court under Article 136 of the Constitution. The grant of special leave is discretionary and is exercised only when the case raises a substantial question of law or a grave miscarriage of justice. Upon granting leave, the Supreme Court may entertain the petition on several grounds: (i) misinterpretation of the statutory provision governing the reverse burden, (ii) erroneous appreciation of evidence, particularly expert testimony lacking legislative definition, (iii) violation of the constitutional guarantee of a fair trial, and (iv) procedural irregularities such as improper application of a civil evidentiary standard. The Court may entertain the petition as a direct appeal, reviewing both factual findings and legal conclusions. If the Court finds that the High Court erred in its application of law or in assessing the evidential burden, it can set aside the conviction, annul the fine, and order restitution of forfeited property. Additionally, the Supreme Court may entertain ancillary remedies such as a review petition if a manifest error of law is identified after the judgment, or a curative petition if principles of natural justice were violated. The discretionary nature of Article 136 allows the Court to shape the outcome by either limiting the scope of review to specific legal questions or by granting a full rehearing of the entire case. In the present matter, the Supreme Court’s analysis will likely focus on whether the reverse burden was correctly applied and whether the prosecution’s reliance on expert testimony without statutory definition sufficed to prove the offence. If the Court determines that the conviction rests on speculative evidence and a misapplied burden, it will likely exercise its discretion to quash the conviction, thereby providing comprehensive relief to the accused and clarifying the legal standards for future cases.

Question: How does the principle of “benefit of the doubt” interact with statutory ambiguity in export-control offences, and what impact does this have on the forfeiture of goods ordered by lower courts?

Answer: The “benefit of the doubt” principle obliges courts to resolve any uncertainty in the prosecution’s case in favour of the accused, particularly in criminal matters where liberty and property are at stake. When a statute governing export-control offences contains ambiguous terminology—such as “refined grain-flakes” without a legislative definition—the ambiguity intensifies the requirement to grant the accused the benefit of the doubt. The prosecution must bridge the gap created by the statutory silence by presenting clear, unambiguous evidence that the exported commodity falls outside the permitted description. In the fictional case, the prosecution’s reliance on a laboratory report indicating a grain content below an arbitrary threshold fails to meet this burden because the threshold itself is not prescribed by law. Consequently, the ambiguity cannot be resolved in favour of the State. The Supreme Court, when reviewing the forfeiture order, will assess whether the conviction, which underpins the forfeiture, was legally sustainable. If the conviction is set aside due to insufficient proof, the forfeiture order loses its foundation and must be rescinded. Moreover, the Court may order restitution of any amounts already paid as fine and the return of the forfeited goods or their proceeds. This outcome underscores that forfeiture, as a punitive measure, is contingent upon a valid conviction; without a legally sound conviction, the forfeiture cannot stand. The broader impact is that legislative bodies are urged to provide precise definitions in export-control statutes to avoid reliance on conjecture, and law enforcement agencies must ensure that their evidentiary basis aligns with the statutory language. The Supreme Court’s adherence to the benefit of the doubt in the face of statutory ambiguity thus safeguards the accused’s property rights and reinforces the constitutional presumption of innocence.

Question: Does the existence of a statutory provision that reverses the ordinary burden of proof, coupled with ambiguous terminology in the export permit, make a Special Leave Petition under Article 136 appropriate before the Supreme Court of India?

Answer: The factual matrix presents a conviction for contravention of an essential-supplies regulation where the accused produced an amended permit authorising the export of “refined grain-flakes”. The statute governing the offence expressly requires the accused to produce a valid permit; once produced, the evidential burden shifts to the prosecution to prove that the exported commodity does not fall within the description covered by the permit. In the present case the regulation contains no legislative definition of “refined grain-flakes”, and the prosecution relied on a laboratory report that offered a percentage analysis without any statutory benchmark. The High Court upheld the conviction on the basis that the prosecution had, in its view, disproved the description, but it did not address the fundamental defect that the statute imposes a reverse burden and that the term is undefined. This raises a substantial question of law: whether a conviction can stand when the prosecution fails to meet its shifted burden in the face of statutory ambiguity. Article 136 authorises the Supreme Court to grant special leave when a case involves a grave miscarriage of justice or a substantial question of law that the lower courts have not correctly resolved. The reverse-burden provision and the lack of definition create a scenario where the factual defence—production of the permit—cannot alone determine the outcome; the legal issue of burden allocation and interpretation of undefined terminology must be examined. Consequently, a Special Leave Petition is maintainable because the Supreme Court’s jurisdiction is invoked to ensure that the prosecution has discharged its statutory burden and that the conviction does not rest on conjectural expert evidence. The petition therefore seeks clarification of the legal principles governing reverse burdens and the admissibility of expert testimony where the legislature has left essential terms undefined, a matter squarely within the Supreme Court’s purview.

Question: Can a petition for quashing the conviction be entertained by the Supreme Court of India when the prosecution’s evidence consists primarily of expert analysis that lacks a statutory benchmark?

Answer: The record shows that the prosecution’s case hinged on a laboratory officer’s report indicating that the exported material contained 78 percent of the primary grain component, a figure presented as proof that the commodity was “raw kernels” rather than “refined grain-flakes”. However, the essential-supplies regulation does not prescribe any percentage threshold to define “refined”. The accused satisfied the statutory requirement of producing a valid permit, thereby shifting the evidential burden to the State. The High Court’s affirmation of the conviction rested on the inference that the expert’s percentage analysis was sufficient to demonstrate that the commodity lay outside the permit’s scope. In criminal procedure, the prosecution must prove every element of the offence beyond reasonable doubt. When the statute itself is silent on the technical parameters that the expert relies upon, the expert testimony becomes speculative and cannot satisfy the legal burden. A petition for quashing the conviction therefore raises a procedural defect: the failure of the prosecution to meet the evidential burden imposed by the reverse-burden provision. The Supreme Court may entertain such a petition under its inherent power to set aside convictions that are manifestly unsafe. The Court will examine the record to determine whether the expert evidence, unanchored by any legislative definition, can be treated as conclusive proof of the commodity’s nature. If the Court finds that the prosecution’s evidence does not meet the standard of proof required, it may quash the conviction, set aside the fine and forfeiture, and order restitution. The practical implication is that convictions cannot be sustained on expert opinions that fill legislative gaps; the State must either produce statutory standards or demonstrate the commodity’s character through unequivocal evidence. Thus, the petition for quashing is appropriate before the Supreme Court to rectify a conviction predicated on an evidentiary foundation that fails to satisfy the statutory burden of proof.

Question: Under what circumstances can the Supreme Court of India entertain a review petition challenging the High Court’s finding that the accused failed to prove the nature of the exported commodity?

Answer: A review petition is an extraordinary remedy available when a judgment is rendered on a manifest error of law or fact. In the present scenario, the High Court concluded that the accused had not proved that the exported material was “refined grain-flakes”, despite the fact that the accused produced an amended permit and elicited admissions from prosecution witnesses that the commodity could be described as “bharda” or “refined grain-flakes”. The High Court’s reasoning relied heavily on the laboratory report, yet the regulation contains no definition of the term, and the expert’s percentage analysis lacks a statutory benchmark. A manifest error may arise if the Court overlooked the statutory reverse-burden provision, misapplied the burden of proof, or failed to appreciate that the absence of a legislative definition renders the expert’s conclusion speculative. If the petitioner can demonstrate that the High Court’s judgment was based on an erroneous interpretation of the burden-shifting mechanism or on an improper assessment of the evidentiary value of the expert report, a review petition may be entertained. The Supreme Court will scrutinise the record to ascertain whether the High Court’s conclusion was founded on a legal misapprehension that the prosecution had discharged its burden, when in fact the burden remained unmet. The petition must specifically point out the error, such as the failure to recognize that the prosecution’s evidence does not satisfy the statutory requirement of proving the commodity’s nature beyond reasonable doubt. If the Supreme Court is convinced that the High Court’s decision rests on such a manifest error, it may set aside the judgment and remit the matter for fresh consideration, or directly quash the conviction. The practical implication is that the review mechanism safeguards against judicial oversight in applying statutory burden provisions, ensuring that convictions are not upheld on flawed legal foundations.

Question: When can a curative petition be filed before the Supreme Court of India in this case, and what procedural defects must be established to justify such an extraordinary remedy?

Answer: A curative petition is the last resort available when a party alleges that a violation of the principles of natural justice or a breach of the Supreme Court’s own procedural rules has resulted in a miscarriage of justice, even after a review petition has been dismissed. In the present matter, the accused may contend that the Supreme Court, while hearing the Special Leave Petition, failed to afford an opportunity to address the fundamental issue of the reverse-burden provision and the undefined terminology, thereby infringing the right to be heard. To invoke a curative petition, the petitioner must demonstrate that a clear breach of natural justice occurred—for example, that the Court relied on a record that omitted material evidence, such as the admissions of prosecution witnesses, or that the Court’s reasoning ignored the statutory shift of burden. Additionally, the petitioner must show that the breach was not rectifiable by a review because the review petition was either not filed or was dismissed on technical grounds, and that the relief sought cannot be obtained through any other remedy. The curative petition must be filed within a reasonable time after the judgment, and it must be accompanied by a certified copy of the judgment, a statement of the breach, and an affidavit affirming the facts. If the Supreme Court is persuaded that the procedural defect—such as denial of a fair hearing on the burden of proof issue—materially affected the outcome, it may entertain the curative petition, set aside the judgment, and either restore the case to the appropriate stage or pass appropriate orders to rectify the injustice. The practical implication is that the curative petition serves as a safeguard against finality that would otherwise cement a miscarriage of justice arising from procedural irregularities at the apex court.

Question: Is a transfer petition seeking to move the criminal appeal directly to the Supreme Court of India justified when the High Court’s decision involves a substantial question of law regarding the allocation of evidential burden?

Answer: Transfer of a criminal appeal to the Supreme Court is permissible under the Constitution when the matter involves a substantial question of law of general public importance, or when the High Court is deemed unable to decide the issue impartially. In this case, the High Court upheld a conviction despite the presence of a statutory provision that reverses the ordinary burden of proof and the lack of any legislative definition of the key term “refined grain-flakes”. The core legal issue is whether, once a valid permit is produced, the prosecution must prove beyond reasonable doubt that the exported commodity lies outside the description, even when the statute provides no technical parameters. This question transcends the facts of the present case and touches upon the interpretation of reverse-burden clauses, the admissibility of expert testimony in the absence of statutory standards, and the constitutional guarantee of a fair trial. Such a question is of general importance because it affects all prosecutions under similar regulatory regimes where technical terms are left undefined. Moreover, the Supreme Court’s pronouncements on this point would provide authoritative guidance to lower courts and the prosecution on the proper allocation of evidential burden. Consequently, a transfer petition can be justified on the ground that the High Court’s decision raises a substantial legal issue that warrants the Supreme Court’s immediate intervention. If the Supreme Court accepts the transfer, it will hear the appeal directly, thereby bypassing the usual appellate hierarchy, and will be able to settle the legal question definitively. The practical implication is that a successful transfer ensures uniformity in the application of the reverse-burden principle across the criminal justice system and prevents divergent interpretations by different High Courts.

Question: What strategic factors determine whether a special leave petition should be filed against a conviction that rests on a statutory reverse-burden provision?

Answer: The decision to invoke the special leave jurisdiction of the Supreme Court of India begins with a factual snapshot of the case: the appellant was convicted under an essential-supplies provision that expressly places on the accused the burden of producing a valid export permit, and the appellate court upheld the conviction despite the permit’s face-value compliance. The first strategic factor is the presence of a substantial question of law, such as the proper construction of the reverse-burden clause and the extent to which the prosecution must prove that the exported commodity falls outside the permit’s description. If the lower courts have interpreted the statutory language in a way that departs from established principles of burden allocation, this creates a strong ground for special leave. A second factor is the evidentiary landscape. The prosecution’s case relied heavily on expert testimony that quantified grain content without any legislative benchmark for the term “refined grain-flakes”. The absence of a statutory definition raises a serious doubt as to whether the prosecution met its evidential burden beyond reasonable doubt. Demonstrating that the expert analysis is speculative strengthens the argument that a miscarriage of justice occurred. Third, the procedural history matters. The conviction survived a trial court and a High Court decision, but the High Court’s reasoning may contain errors of law that are not correctable on ordinary appeal. The Supreme Court’s special leave jurisdiction is appropriate where the lower courts have erred on a point of law that affects the outcome. Fourth, the potential impact of the decision should be weighed. A ruling clarifying the interaction of reverse-burden provisions with undefined technical terms would have a ripple effect on future prosecutions under similar regulatory statutes, thereby satisfying the Court’s interest in resolving a matter of public importance. Finally, the risk of denial of special leave must be assessed. The petition must articulate a clear legal question, demonstrate that the conviction is unsafe, and show that the matter is not merely an appeal against the factual findings of the lower courts. A well-crafted petition that isolates the legal issue, references the statutory scheme, and highlights the evidentiary deficiencies will improve the chances of the Supreme Court granting leave.