AFFIRMATIVE DEFENSES AND DUE PROCESS - THE CONSTITUTIONALITY OF PLACING A BURDEN OF PERSUASION ON A CRIMINAL DEFENDANT

• NCJ Number: 34994
• Journal: Georgetown Law Journal Volume: 64 Issue: 4 Dated: (MARCH 1976) Pages: 871-894
• Author(s): R M GORDON
• Date Published: 1976
• Length: 24 pages
• Corporate Author: Georgetown University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

PROPOSAL FOR THE APPLICATION OF THE WINSHIP-MULLANEY DUE PROCESS ANALYSIS TO ALL AFFIRMATIVE DEFENSES TO RELIEVE THE DEFENDANT OF THE BURDEN OF PERSUASION BEYOND A REASONABLE DOUBT.

Abstract

THE DECISIONS IN RE WINSHIP (1970) AND MULLANEY V WILBUR (1975) SUGGEST THAT THE ABSENCE OF ANY PROPERLY RAISED DEFENSE SUCH AS SELF-DEFENSE, INSANITY, OR ENTRAPMENT IS AN ELEMENT OF THE CRIME THAT FALLS WITHIN THE CHANGING SCOPE OF THE FOURTEENTH AMENDMENT DUE PROCESS REQUIREMENT PLACING THE BURDEN OF PROOF ON THE PROSECUTION. THIS ANALYSIS SEEKS TO DEMONSTRATE THAT THE SEPARATION OF ELEMENTS AND DEFENSES TO JUSTIFY PLACING A BURDEN OF PROOF ON A DEFENDANT RESTS ON OUTMODED VIEWS OF MENS REA, HISTORICAL CONFUSION CONCERNING THE DIFFERING INTERESTS OF CIVIL AND CRIMINAL DEFENDANTS, AND THE UNCRITICAL ACCEPTANCE OF THE THEORY OF COMMON LAW PRESUMPTIONS. IT IS RECOMMENDED THAT THE COURTS IMPLEMENT THE RULE THAT THE PROSECUTION NEED NOT PROVE AT THE OUTSET THE ABSENCE OF EVERY CONCEIVABLE DEFENSE, BUT THAT WHEN THE FACTS INTRODUCED BY THE PROSECUTION OR THE DEFENDANT FAIRLY RAISE THE ISSUE, DISPROOF OF THAT DEFENSE BECOMES AN ELEMENT THAT THE PROSECUTION MUST PROVE BEYOND A REASONABLE DOUBT. THE AUTHOR STATES THAT THIS WILL ALTER ONLY THE PROCEDURAL CONDUCT OF THE TRIAL AND JURY INSTRUCTIONS, NOT THE SUBSTANTIVE LAW.