Burden of Proof

Burden of Proof

The elements taught so far describe what the prosecution must show to raise an intentional killing to first degree murder. This section adds the constitutional rule about who must prove them and to what standard. The Due Process Clause protects an accused against conviction except upon proof beyond a reasonable doubt of "every fact necessary to constitute the crime with which he is charged," as the Court said in In re Winship.¹ The whole question then becomes which facts count as necessary to constitute the crime and which a state may treat as a defense for the defendant to establish. Premeditation and deliberation fall on the prosecution's side of that line, and heat of passion supplies the contrast that shows where the line runs.

Prosecution's Burden on Premeditation

In Leland v. Oregon the jury was told that it could return a first degree verdict only if it found beyond a reasonable doubt that the defendant killed purposely and with deliberate and premeditated malice, and that the verdict had to be second degree if the killing was purposely malicious but lacked deliberation and premeditation.² The charge also directed a manslaughter verdict for a killing without malice upon sudden heat of passion, and an acquittal if reasonable doubt remained about any necessary element of each degree.³ That instruction restates the ladder of degrees from earlier in this chapter, and it makes visible why the burden falls where it does: premeditation and deliberation are the facts that separate second degree from first. In describing the trial, the Court recorded that the prosecution was required to prove every element of the crime charged, including premeditation, deliberation, malice, and intent for first degree murder, and that this burden did not shift but rested on the State throughout the trial.⁴

Two reasons support placing the burden on the state, and they are different in kind. The first is the penalty gap. In California, for example, first degree murder is punishable by death, life without parole, or 25 years to life, while second degree carries 15 years to life,⁵ so the finding of premeditation changes what the defendant faces for the very same killing. A fact with that effect is necessary to constitute the greater offense, and the reasonable doubt standard follows it, because criminal law attends to the degree of culpability as well as to the bare question of guilt.⁶ The second reason concerns incentives. Legislatures write the definition of each offense, and a legislature that could define murder as an intentional killing and then require the defendant to disprove planning would convert the element carrying the heaviest punishment into a matter for the party least able to carry it, since the absence of a mental state is a negative that no evidence can readily establish. The Court has refused to let a state avoid its burden by redefining elements as factors that bear only on punishment.⁷ The same logic is the footing for the earlier point that an intentional killing is not presumed to be first degree, since a presumption of premeditation would shift to the defendant a fact the prosecution is bound to prove.

Leland also shows how the state's burden coexists with burdens the defendant may carry elsewhere. Oregon required the defendant to prove insanity, and to prove it beyond a reasonable doubt, which was more than any other state then demanded, yet the Court upheld the scheme because the burden on every element, premeditation and deliberation included, stayed with the State throughout the trial.⁸ The jury was told to weigh the evidence of the defendant's mental condition in deciding whether the defendant could premeditate and deliberate, and that a defendant who could formulate no plan, design, or intent to kill in cool blood had not committed first degree murder.⁹ Only after the jury had considered the elements did it take up legal sanity as a separate issue.¹⁰ Evidence of mental capacity therefore does double duty. It bears on the premeditation element, which the state must prove, and it supports the separate defense of insanity, which the defendant may be made to establish. The first use connects to the distinction between capacity and actual reflection taught above.

The fact that moved the answer is who carries premeditation. On an exam stem, the signal is any instruction or statute that treats proof of an intentional killing as enough for first degree and leaves the defendant to show the absence of planning. That arrangement is a presumption of premeditation, and it fails because the state has been relieved of an element. A stem in which the defendant instead raises insanity is different, because the state must still prove premeditation and the defendant may be assigned the burden only on the separate defense.

Heat of Passion and Burdens

Premeditation sits with the state because it is an element of first degree murder as the statute defines it. Heat of passion tests the boundary from the other side, because many states have long asked the defendant to reduce murder to manslaughter by proving passion. In Mullaney v. Wilbur, Maine law treated every intentional or criminally reckless killing, absent justification or excuse, as a felonious homicide punished as murder with life imprisonment unless the defendant proved by a fair preponderance of the evidence that it was committed in the heat of passion on sudden provocation, in which case it was manslaughter punishable by no more than 20 years.¹³ The jury was told that malice aforethought was an essential element of murder, that malice would be implied from a sudden, cruel, intentional act without considerable provocation, and that malice and heat of passion are inconsistent, so that proving the latter negates the former.¹⁴ The Court unanimously held that the presumption, which cast on the defendant the burden of proving passion by a preponderance, invaded the defendant's due process rights.¹⁵

Two links in the reasoning carry the holding. Because passion negated malice, and malice was what made the killing murder, requiring the defendant to prove passion required the defendant to disprove a fact the state treated as necessary to the greater crime. The state also argued that the allocation did not matter because a conviction for either murder or manslaughter costs the defendant liberty and brings stigma. The Court rejected that argument, because the consequences of the two verdicts differ substantially and a state cannot sidestep Winship by redefining the elements of different crimes as factors bearing only on punishment.¹⁶ Mullaney is not a decision about premeditation. The Maine Supreme Judicial Court had said that malice aforethought in the sense of premeditation was not essential to a murder conviction in Maine,¹⁷ and the Court accepted that construction because state courts are the ultimate expositors of state law.¹⁸ The case matters here for what it forbids, which is making the defendant disprove malice by proving passion.

Patterson v. New York marks the other edge. The defendant argued that Mullaney necessarily invalidated the conviction, and the Court responded that long before Winship the rule was universal that the prosecution must prove guilt beyond a reasonable doubt, yet it had long been constitutionally permissible to require the defendant to prove various affirmative defenses, meaning matters the defendant raises that excuse, justify, or mitigate a killing even though the prosecution has proved every element of the offense as the state defines it.¹⁹ That practice had not produced the abuses or the redefinition of crimes that would call for a new constitutional rule, and a state that chooses to carry the burden of disproving such defenses does not thereby bind states that strike a different balance.²⁰ Applying that approach, the Court let New York require the defendant to prove the affirmative defense of extreme emotional disturbance.²¹ The line follows the state's own definition of the crime: Winship reaches the facts a state makes necessary to the offense, and a true affirmative defense leaves the state to prove everything it chose to require.

The same allocation appears in the general law of homicide. Once the state presents a prima facie case, the defenses that remain are justifications and excuses such as self-defense, accident, and insanity, which are the matters states most often assign to the defendant.²² California's statute illustrates the practice: once the defendant's commission of the homicide is proved, the burden of proving circumstances of mitigation, justification, or excuse falls on the defendant, unless the prosecution's own proof shows only manslaughter or a justified or excusable killing.²³ That provision speaks to mitigation, justification, and excuse and does not purport to reach the willful, deliberate, and premeditated killing that section 189 makes first degree, so the state's burden on those elements is untouched by it.²⁴

The fact that moved the answer is how the state built the offense, since the sudden anger was the same in both. A stem that sorts these cases by label goes wrong, because Maine described its rule as a mere policy presumption and still lost, having made passion the negation of malice.²⁷ The question to ask is whether the matter the defendant must prove negates something the state's definition requires, since burden shifting on an element is what Mullaney forbids and an independent affirmative defense is what Patterson permits.

Prosecution's Burden on Premeditation

The line just drawn puts premeditation and deliberation on the state's side. When a statute raises an intentional killing to first degree by adding those two facts, they become elements of the greater offense, and the prosecution must prove them beyond a reasonable doubt, along with malice and intent to kill.²⁹ A jury charge described in Fisher v. United States shows the rule in operation: the judge listed malice, premeditation, and deliberation as separate elements of first degree murder and told the jury that each and all must be established beyond a reasonable doubt.³⁰ The same charge defined premeditation as thinking about taking a life before acting and reaching a definite decision to kill, and deliberation as reflecting on that design and giving it second thought.³¹ Keeping the elements apart matters because a jury that has found only a purposeful, malicious killing has found second degree murder and nothing more.³²

Two reasons for putting this burden on the state can be read off the structure of the offense. The first concerns punishment. Legislatures divide murder into degrees to confine the heaviest penalties to first degree,³³ so the finding of premeditation and deliberation is the fact that moves the same killing from the lighter category into the heavier one, and the demanding standard of proof attaches to the fact that carries that consequence. The second reason concerns the line between the degrees. Premeditation and deliberation are subjective states of mind, shown usually by circumstantial evidence, and a rule treating every intentional killing as first degree unless the defendant disproved planning would leave nothing for the degrees to distinguish.³⁴ The West Virginia court made a parallel observation about a definition that allowed intent formed for the first time at the moment of the killing to qualify, holding that it eliminated the difference between first and second degree.³⁵ That is why no presumption makes an intentional murder first degree, and why the higher degree requires affirmative evidence that the defendant in fact premeditated and deliberated.³⁶

The state's burden includes coming forward with evidence as well as persuading the jury. A classic charge under a statute dividing murder into degrees tells the jury that proof of the intention to kill, and of the state of mind that makes a killing first degree, lies on the Commonwealth, although that proof may be inferred from the circumstances rather than shown directly.³⁷ In State v. Forrest, a son shot his gravely ill father four times in a hospital bed, and the North Carolina court began from the rule that a first degree charge may go to the jury only after substantial evidence has been introduced on each essential element, premeditation and deliberation included.³⁸ The court found that evidence in the helplessness of the victim, the absence of provocation, the single-action revolver that had to be cocked for every shot, and the gun the defendant carried to the hospital on a day he was not working.³⁹ Those are the kinds of facts taught above as proof of premeditation, and the point here is who must supply them.

The cleanest illustration of the burden surviving alongside a defendant's own burden is Leland v. Oregon. The jury there was told that it could return a first degree verdict only on finding beyond a reasonable doubt that the defendant killed purposely and with deliberate and premeditated malice, and that the verdict must be second degree if the killing was purposeful and malicious but lacked deliberation and premeditation.⁴⁰ The judge also told the jury that the burden of proof on guilt and on every necessary element did not shift but rested on the State throughout the trial, while legal insanity was a separate issue to be decided by a special verdict.⁴¹ On that separate issue Oregon required the defendant to prove insanity beyond a reasonable doubt,⁴² yet the instructions kept the State's burden on every first degree element in place. The defendant's mental-condition evidence also did double duty, because the jury was told to weigh it in deciding whether the defendant could premeditate and deliberate, a question on which the State carried the burden.⁴³

Courts have not agreed on who should carry the separate issue of insanity, and the disagreement leaves the first degree elements untouched. In Davis v. United States the trial judge instructed that the law presumes every person sane and puts the burden of overturning that presumption on the defendant.⁴⁴ The Supreme Court reasoned the other way: the burden of showing the accused was capable of committing a crime rests on those who say he committed it, because a plea of not guilty controverts every fact essential to the crime, and guilt is not proved while the jury has a reasonable doubt about capacity.⁴⁵ Arizona sits at the opposite pole. In Clark v. Arizona the defendant had to prove insanity as an affirmative defense, yet the Court confirmed that the burden of proving the mens rea for first degree murder, intent or knowledge, stays on the prosecution because mens rea and insanity are distinct issues.⁴⁶ Whichever way a jurisdiction allocates insanity, the elements of the charged offense never move to the defendant.

Martin v. Ohio applies the same principle to a statute that builds premeditation into the definition of murder. Ohio defined murder as purposely causing death with prior calculation or design and placed the burden of proving self-defense on the defendant, and the Court upheld the conviction because the defendant carried no burden on any element, the instructions made clear that the State had to prove prior calculation and design beyond a reasonable doubt, and the self-defense evidence could still be weighed in deciding whether reasonable doubt existed on any element.⁴⁷ The last feature matters for premeditation, because evidence offered on a defense the defendant must prove still counts against the state's elements. A jury that rejects self-defense may therefore still doubt that the killing was planned, which parallels the instruction in Leland to weigh mental-condition evidence on the capacity to premeditate.

On an exam stem, the signal to watch for is any instruction or statute that treats proof of an intentional killing as enough for first degree and leaves the defendant to show the absence of planning. That arrangement presumes an element of the higher degree and fails. A stem in which the defendant raises insanity calls for a different reading, because the State must still prove premeditation and deliberation, and the defendant may be assigned the burden only on the separate defense. The trap is to let the insanity allocation spread to premeditation, when the defendant's burden on that defense leaves the State's burden on every first degree element untouched.

Heat of Passion and Burdens

Heat of passion is a mitigation doctrine: at common law, an intentional killing that would otherwise be murder is voluntary manslaughter when it occurs in the heat of passion after adequate provocation and before a reasonable cooling-off period has run.⁵¹ The passion that counts is the kind that so governs the person that forming a deliberate purpose to kill becomes impossible, which is why burden questions about passion are easily confused with burden questions about premeditation.⁵² The elements of the mitigation are taught elsewhere, and only the burden of proof matters here. The governing rule comes from In re Winship: due process forbids conviction except on proof beyond a reasonable doubt of every fact necessary to constitute the crime charged.⁵³ Where a statute makes premeditation and deliberation elements of first degree murder, that rule puts them on the prosecution, as the section on the prosecution's burden on premeditation explains. Heat of passion sits at the opposite end of the grading scale, since it lowers a murder instead of raising it, and two decisions fix how far a state may go in making the defendant prove it.

In Mullaney v. Wilbur the Court held that Maine violated that rule by making the defendant prove heat of passion.⁵⁴ Maine treated every intentional or criminally reckless killing, absent justification or excuse, as felonious homicide, punished as murder by life imprisonment unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation, in which case the punishment was that for manslaughter, a fine up to $1,000 or imprisonment up to 20 years.⁵⁵ The jury was told that malice aforethought was an indispensable element of murder, that malice would be implied from an intentional, unlawful killing, and that malice and heat of passion were inconsistent, so that proving passion would negate malice.⁵⁶ The defect follows from those instructions. Maine made malice part of murder, passion defeated malice, and a rule requiring the defendant to prove passion therefore required him to disprove a fact the state itself had made necessary to the crime. The stakes were substantial, because losing the point meant life imprisonment instead of a twenty-year maximum, and the Court unanimously found a due process violation.⁵⁷

Two features of the decision show how little room a state has to reach the same result by relabeling. Maine's highest court described murder and manslaughter as degrees of one offense, felonious homicide, and the Court accepted that account of state law, yet the Winship rule still applied, because it covers the degree of criminal culpability as well as guilt or innocence.⁵⁸ A state also cannot avoid the rule by redefining elements as factors bearing only on punishment, since the consequences of a murder verdict and a manslaughter verdict differ so greatly.⁵⁹ Maine's rule had a long pedigree, because at common law malice was presumed from an unlawful homicide and the accused bore the burden of showing alleviating circumstances, yet that history did not save it.⁶⁰ The malice in play was also a different thing from premeditation. The First Circuit had equated the two, and Maine's highest court answered that proof of premeditation was not essential to murder in Maine.⁶¹ Mullaney is therefore a mitigation case, and it says nothing directly about who must prove premeditation.

Patterson v. New York marks the other edge of the line.⁶² New York defined second degree murder as causing another person's death with intent to cause that death, and it gave the defendant an affirmative defense, meaning a matter the defendant raises to mitigate a killing even though the prosecution has proved every element of the offense as defined, when the defendant acted under extreme emotional disturbance with a reasonable explanation or excuse.⁶³ The defendant had to prove the disturbance by a preponderance of the evidence, and success reduced the crime to manslaughter.⁶⁴ The prosecution had proved intent to kill beyond a reasonable doubt, and the Court upheld the conviction.⁶⁵ Mullaney was distinguishable because Maine had asked the defendant to disprove malice aforethought, an element of its murder offense, while New York's definition of murder never included malice aforethought.⁶⁶ Nothing the New York defendant had to prove negated an element, so the state had proved every fact it had chosen to make necessary.⁶⁷ The Court added that placing the burden of affirmative defenses on the defendant was a long-accepted practice that had produced no abuses, and that a state is not forced to follow the majority of states that now carry that burden themselves.⁶⁸

Later decisions confirm both edges. Sandstrom v. Montana treated the heat-of-passion presumption in Mullaney as a model of the burden-shifting presumption on an element that due process forbids, and it repeated that a state may not shift the burden to the defendant on an ingredient of the offense.⁶⁹ Statutes often state the allocation in general terms. California, for instance, provides that once the defendant's commission of the homicide is proved, the burden of proving circumstances of mitigation, justification, or excuse falls on the defendant, unless the prosecution's own proof tends to show only manslaughter or a justified or excusable killing.⁷⁰ That provision speaks to mitigation, justification, and excuse and says nothing about the willful, deliberate, and premeditated killing that section 189 makes first degree.⁷¹ Whether it may be enforced against a defendant on a matter that negates an element of the offense is the question Mullaney answers.

The quarrel and the evidence were identical in both states, so the fact that moved the answer is how each state built the offense. Labels do not decide the question: Maine described its implied malice as a mere policy presumption and still lost, because it had made passion the negation of malice.⁷⁴ The inquiry follows the state's own definition of the offense. Where the matter the defendant must prove negates something that definition requires, the allocation is the burden shifting on an element that Mullaney forbids, and where the matter operates as an independent defense, Patterson permits it. The size of the sentencing gap does not settle which side of the line a case falls on, since the presence or absence of the single fact of emotional disturbance also separated a greater from a lesser punishment in Patterson.⁷⁵ Because the approach turns on definitions, critics have long pointed out that a legislature can move a fact between the definition and the defense, and the check on that move is the rule against redefining elements as punishment factors.⁷⁶

On an exam stem, the first move is to find the statute or instruction that places a burden on the defendant and ask what the matter to be proved negates. If proof of passion defeats malice and malice is an element in that jurisdiction, the allocation fails. If the statute defines the offense by intent alone and names the mitigating fact as an affirmative defense, the allocation stands. Neither answer changes who must prove premeditation and deliberation, which stay with the prosecution wherever a statute makes them elements.⁷⁷