Burden of Proof in Criminal Law

Burden of Proof

·         Burden of Production: coming forward with enough evidence to put a certain fact in issue (e.g. insanity, duress, self-defense)

·         Burden of Persuasion: convincing the trier of fact.

For most elements of most crimes, prosecution bears both burdens. But in some instances, defense may bear both, or production might be on defense but persuasion on prosecution.

·         When D bears burden of production = affirmative defense.

·         Prosecution can’t move for directed verdict in a criminal trial no matter how persuasive the evidence à would deny right to a jury trial. This implicitly permits jury nullification.

In Re: Winship US 1970 (Due Process Clause and Burden of Proof)

·         D is juvenile charged with larceny in juvenile prosecution (more informal). Juvenile court found him guilty by a preponderance of the evidence and sentenced him to 1 ½ years.

·         Holding: Burden of persuasion is on gov’t: due process protects against conviction except upon proof beyond a reasonable doubt of every element of fact necessary to constitute the charged crime.

·         Concur: standard of proof affects comparative frequency of convicting the innocent v. the guilty escaping.

Mullaney (in Patterson)

·         Crime: murder (need malice aforethought (w/o provocation) as to result element of death)

·         ∆ had burden of proof w/ defense of provocation (killing w/o m.a.f.), but π had to prove every element of the above crime

·         Thus, putting burden on ∆ made it so that prosecution no longer had to prove every element of the crime beyond a reasonable doubt

·         Holding: Doing this is unconstitutional

Patterson v. New York US 1977 p33

·         Facts: Husband spies on estranged wife and her and sees her getting undressed with the neighbor à barges in, shoots, and kills the neighbor.

·         Charged w/ 2^nd degree murder.

·         1) Intent to cause death of another

·         2) Causing death of that person or 3^rd person.

·         *Malice aforethought isn’t an element.

·         *Affirmative defense of extreme emotional distress permitted, b/c this is not the opposite of intentional killing (like m.a.f. and provocation are)

·         Issue: Jury was instructed the D had to prove the affirmative defense of extreme emotional disturbance by a preponderance of the evidence.

·         Holding: Putting the affirmative defensive burden on the D is not a deprivation of due process.

·         State still proved all the elements necessary for murder; ∆ defense only mitigates does not negate element since nothing in statute about provocation.

·         Dissent: in Mullaney – making the D prove the heat of passion beyond a reasonable doubt = unconstitutional. In Patterson, making D prove EED by preponderance of the evidence = constitutional. à formalistic and stupid division.

Conclusions:

·         Constitution places few limits on placing burden of proof—S.C. reluctant to limit legislature

·         Slippery slope concerns—not clear limits on setting crimes and punishments, which gives the prosecutor more power

·         More limits on crim procedure than substance of crim law

Why beyond reasonable doubt?

1)       Don't want to hurt innocent people

2)       Gives concrete substance to presumption of innocence (a charge is not evidence)

3)       Justifies/legitimizes the system