Academic journal article American Journal of Criminal Law

A Principled Approach to the Standard of Proof for Affirmative Defenses in Criminal Trials

Academic journal article American Journal of Criminal Law

A Principled Approach to the Standard of Proof for Affirmative Defenses in Criminal Trials

Article excerpt

I. Introduction ....................281

II. First Principles .................... 282

III. Case Law .................... 284

A. In re Winship .................... 285

B. Mullaney v. Wilbur .................... 285

C. Patterson v. New York .................... 286

IV. The Need for a Principled Approach .................... 288

A. The Political Argument in Patterson .................... 289

B. The Blackstonian Thesis .................... 290

V. A Principled Approach .................... 292

VI. Objections .................... 294

A. Particular Knowledge and Proving a Negative .................... 294

B. The Political Objection .................... 295

C. The Justification-Excuse Distinction .................... 296

VII. Recommendations .................... 297

A. Reconsider First Principles .................... 297

B. Close the Knowledge Gap .................... 298

C. Overturn Patterson .................... 298

D. State Constitutional Amendments .................... 298

E. Legislation ....................298

VIII. Conclusion .................... 298

I. Introduction

This Note addresses shifting the burden of proof to criminal defendants for affirmative defenses. An affirmative defense is distinct from other defenses in part because it typically assumes the truth of other elements of the crime.1 Thus, instead of "I didn't shoot him," it is "I shot 1. Affirmative defenses that do not assume the truth of the other elements include a claim that the * J.D., The University of Texas School of Law, 2013. I. Affirmative defenses that do not assume the truth of the statute

him but in self-defense" or "I shot him but I was insane at the time." It is clear that proof beyond a reasonable doubt is required for defenses such as "I didn't shoot him" or "I wasn't there"-in order to get a conviction, the prosecution must prove beyond a reasonable doubt that the defendant was there and did shoot the victim. Like the defendant asserting an alibi, the defendant asserting an affirmative defense claims he did not commit the crime he is charged with. Saying "I shot him in self-defense" is a specific way of contending, "I did not commit murder." But while the prosecution must prove the absence of an alibi beyond a reasonable doubt, states may relieve the prosecution of that burden and shift it to the defendant while lowering the standard of proof for affirmative defenses.2

This Note argues that such burden-shifting and lowering of the standard of proof is improper. Part II begins the argument by discussing the broad principles that guide the analysis. Part III reviews significant United States Supreme Court precedent regarding the standard of proof and affirmative defenses, and shows how the reasonable doubt standard's robust protection has been subverted. Part IV addresses the need for a principled approach due to epistemic problems surrounding criminal law, and Part V provides such an approach. Part VI addresses objections and Part VII makes recommendations. Part VIII concludes.

II. First Principles

Any theoretical analysis of affirmative defenses-or indeed of criminal law in general-must begin with first principles, or at least early ones. This Part will discuss the requirement of proof beyond a reasonable doubt in criminal trials and the fundamental principle that underlies it: the belief that erroneously convicting an innocent person is more costly than erroneously acquitting a guilty one.

The right to be free from conviction absent "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged" is constitutionally required.3 Indeed, the reasonable doubt standard is "a fundamental normative precept of the Anglo-American conception of justice."4 Under this standard, it is necessary for the prosecution to convince the jury that there is no reasonable doubt as to the defendant's guilt-if the prosecution's case does not meet this standard, the defendant cannot be convicted without violating the Constitution. …

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