Limits on Shifting the Burden

Limits on Shifting the Burden

The preceding section closed on a constraint that this one tests: once a legislature defines a crime, it must prove each element as defined beyond a reasonable doubt. The source of that constraint is the Due Process Clause, which, as the Court put it in In re Winship, protects the accused "against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."¹ The operative phrase is every fact necessary to constitute the crime, and it hides a question about who decides which facts those are. Legislatures write offense definitions, so the first answer comes from the legislature, which makes the drafting of the offense the place where the protection is won or lost. A reasonable-doubt requirement that attached only to whatever facts a legislature chose to call elements would bind only those legislatures that chose to be bound, as an invented statute shows.

The opposing consideration is the legislature's legitimate control over how crimes are graded and which circumstances reduce or excuse liability. If every mitigating or excusing circumstance had to be disproved by the prosecution, the state would carry the cost of negating each such circumstance in every trial, and a legislature weighing whether to recognize a new ground of mitigation would have to count that cost against recognizing it at all. In Patterson v. New York, the state court's explanation for its allocation was of this kind: the legislature had judged that a defendant acting under extreme emotional disturbance is less blameworthy than one who kills with a normal mental state, and it had chosen to recognize that reduced culpability on the terms of its own statute.² The line-drawing problem is therefore how to stop relabeling that guts the elements without freezing every legislative judgment about how to define offenses and allocate defenses.

Two decisions, taken in sequence, mark out the answer. In Mullaney v. Wilbur, Maine required a defendant charged with murder to prove that he acted in the heat of passion on sudden provocation in order to reduce the homicide to manslaughter, and the Court asked whether that rule comported with the Winship requirement.³ The Court held that it did not, because the statute shifted to the defense the burden of proving the malice element of homicide.⁴ Two years later, Patterson upheld a New York statute that defined murder as causing death with intent to kill and made extreme emotional disturbance an affirmative defense, to be proved by the defendant by a preponderance of the evidence, and the Court held that due process did not require the prosecution to prove the absence of that defense beyond a reasonable doubt.⁵

The two cases can look alike, since each involved reducing an intentional killing to manslaughter and each placed a preponderance burden on the defendant. The difference lies in what the burden did to the elements. The Maine statute presumed the absence of provocation, which the Court treated as equivalent to presuming malice, so the defendant was made to disprove an element of the crime, while the New York defense negated nothing the prosecution had to prove and so left every element with the state.⁶ The next two subsections take the cases in the order they were decided, beginning with the rule Mullaney announced and the reasoning behind it.

The Mullaney Rule

The previous section described what Maine's statute did. The reasoning behind the Court's answer in Mullaney v. Wilbur is what turns the case into a rule that can be applied elsewhere. The Court framed the issue as whether due process requires the prosecution to prove beyond a reasonable doubt the absence of heat of passion on sudden provocation, when that issue is properly presented in a homicide case.⁷ Maine's instruction let the jury imply malice from an intentional, unlawful killing unless the defendant proved provocation by a preponderance of the evidence, and the Court held that this shifted to the defense the burden of proving the malice element of homicide.⁸ The ground was the rule of In re Winship, under which the Due Process Clause requires the prosecution to prove every element of a criminal offense beyond a reasonable doubt.⁹

That protection reaches past the elements a state chooses to list. Maine regarded murder and manslaughter as degrees of one crime, yet the Court treated Winship as applying where the issue is the degree of criminal culpability as well as where the issue is guilt or innocence.¹⁰ The reason follows from what a narrower reading would allow. If only the facts a statute formally calls elements received the reasonable-doubt protection, a legislature could define a broad offense and assign the facts that decide how severely the defendant is punished to a separate category that the defendant must prove. The Court looked instead at what the contested fact does to the accused. Here the fact decided whether the conviction would be for murder or for manslaughter, and its formal classification did not change that.

The Court's reasons begin with the stakes. Winship explained that an accused risks both liberty and certain stigma, and that the community's confidence in the criminal law depends on a standard that does not leave people in doubt whether innocent persons are being condemned.¹¹ Mullaney applied those concerns with greater force than Winship itself. The juvenile in Winship faced an eighteen-month sentence with a possible extension of four and a half years, while the Maine defendant faced a sentencing differential that ran from a nominal fine to a mandatory life sentence.¹² The stigma of a murder conviction likewise exceeded that of the delinquency adjudication in Winship, which was meant as benevolent treatment.¹³ A fact that moves a defendant across that gap is exactly the kind of fact the standard exists to protect.

The second reason concerns who carries the burden of persuasion. In Winship the burden had stayed with the prosecution even though the standard had been lowered to a preponderance, so in one respect the protection was weaker in Mullaney, where the State moved the burden itself onto the defendant.¹⁴ The consequence follows from how persuasion burdens operate. A jury that cannot decide an issue must resolve it against the party who carries the burden, and on the Maine instruction the issue rested at malice implied until the defendant moved it. When the defendant must prove the critical fact, the likelihood of an erroneous murder conviction rises, and the Court tied that result to the principle that a party with liberty at stake is protected by placing on the prosecution the duty to persuade the factfinder.¹⁵

The State's practical defense of the rule fared no better. The Maine court had suggested that heat of passion is hard for the prosecution to negate, so the defendant should prove it. The Court agreed that this is often a heavy burden but observed that the same is true of the reasonable-doubt requirement for many controverted facts, and that this is the traditional burden the system treats as essential.¹⁶ The Maine court itself acknowledged that most states require the prosecution to prove the absence of passion beyond a reasonable doubt. The difficulty is also eased because the question is largely an objective one, which can be shown through the circumstances of the killing, as with any other element of intent.¹⁷ The Court likewise refused to treat intent as shiftable merely because it is typically a fact peculiarly within the defendant's knowledge.¹⁸ If superior knowledge justified shifting, nearly every mental-state element could be moved to the accused, and the reasonable-doubt requirement would give way exactly where proof is hardest. Students lose this issue when they accept difficulty of proof or the defendant's superior knowledge as a reason the burden may move.

The contrasting situation is the one most states already follow. A state that requires the prosecution to prove the absence of heat of passion beyond a reasonable doubt once the issue is raised has shifted nothing, and Mullaney poses no problem for it.¹⁹ Maine departed from that baseline in a single respect, which was assigning the persuasion burden on the fact that separates the grades of homicide to the defendant.

Two limits keep the holding in proportion. Read broadly, Mullaney seemed to require the prosecution to disprove every defense, but the Court rejected that reading two years later in Patterson v. New York, which the next subsection takes up.²⁰ Mullaney also left Leland v. Oregon standing. A state could still require a defendant to prove insanity, and only the survival of Leland kept one federal court from extending Mullaney to that defense.²¹ What separates Mullaney from those later allocations is that Maine's rule presumed away a fact tied to malice and made the defendant disprove it, which Patterson later described as shifting the burden on an element.²²

The Patterson Approach

Mullaney v. Wilbur left open how a court should decide whether a fact the defendant must prove belongs to the crime or sits outside it, and Patterson v. New York answered by looking to the way the legislature defined the offense. Gordon Patterson shot and killed John Northrup, a neighbor to whom his estranged wife had once been engaged, after seeing the two together through a window with his wife in a state of semiundress; he was charged with second-degree murder and confessed before trial.²⁴ New York defined that offense through two elements, intent to cause the death of another person and causing that death, and malice aforethought was not among them.²⁵ The statute separately let an accused raise the affirmative defense that he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, and a defendant who proved that defense by a preponderance of the evidence was guilty of manslaughter instead of murder.²⁶

The Court took up whether due process required the prosecution to prove the absence of that defense beyond a reasonable doubt in a second-degree murder prosecution, and it rejected the challenge.²⁷ The reasoning began with what the State had to prove. The death, the intent to kill, and causation were the facts the State needed to establish beyond a reasonable doubt to convict of murder, no further facts were presumed or inferred to constitute the crime, and the affirmative defense did not serve to negate any of those facts.²⁸ The jury instructions matched the statute: the trial court told the jury that it could convict of murder only if the People had established beyond a reasonable doubt that Patterson intended, in firing the gun, to kill.²⁹ Intent therefore stayed with the prosecution, and the defendant's burden attached only to the separate question whether he deserved the lesser grade.

Two features of that result give it its logic. The first is the object of the Winship protection: the Due Process Clause guards against conviction without proof beyond a reasonable doubt of every fact necessary to constitute the crime charged, and the facts that constitute the crime are the ones the legislature's definition of the offense names.³⁰ Once the prosecution has proved each of them, it has proved that the defendant committed the offense as defined. The second feature is the work the defense does. Extreme emotional disturbance asks whether a defendant already proved guilty of murder deserves the lesser grade, so it operates after the elements are established and takes nothing away from the State's proof of them. There is also a practical reason to place that burden on the party who invokes it: excusing and mitigating circumstances are exceptional, and when proof of an exceptional situation is inaccessible or unpersuasive, it is ordinarily fairer to proceed as though the situation did not exist.³¹ That convenience could never justify shifting an element, so it matters here only because the defense sits outside the definition.

The same reasoning explains how the Court distinguished Mullaney instead of overruling it. As the Court described Maine's scheme, the statute presumed a lack of provocation, which was equivalent to presuming malice, and so the defendant had to disprove an element of the crime; the New York defense, by contrast, relieved the prosecution of no element.³² The Court called the shifting of "the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed" impermissible under the Due Process Clause.³³ New York, unlike Maine, left malice aforethought out of its definition of murder, and that omission avoided the defect found fatal in Mullaney even though extreme emotional disturbance is an expanded version of heat of passion on sudden provocation.³⁴ Ten years later the Court confirmed the approach in Martin v. Ohio, where Ohio defined murder as purposely causing death with prior calculation or design and placed the burden of proving self-defense on the defendant. The conviction stood because the defendant bore no burden on any element in the state's definition, the jury was told that the State had to prove every element beyond a reasonable doubt, and the self-defense evidence could still be weighed in deciding whether any element was in reasonable doubt.³⁵

Patterson passes each step: death, intent, and causation are on the list, emotional disturbance operates only after they are proved, and no listed fact is presumed. Maine's scheme, as the Court described it, fails the third step, because malice was in the definition and was implied from the killing until the defendant disproved it by proving provocation. Step two does most of the work in practice, since the same words can describe a defense that mitigates after the elements are proved and a defense that merely denies an element.

The majority's approach has a cost, and it is the cost the dissent put at the center of its objection: protection under Winship then depends on drafting. If a legislature can remove a fact from the definition of the crime and recast it as a defense, the defendant loses the right to have the State prove that fact beyond a reasonable doubt, although nothing about the fact's meaning or its effect on punishment has changed. The dissent accordingly described the majority's test as a retreat to a formalistic one and observed that extreme emotional disturbance is the direct descendant of the heat-of-passion factor considered in Mullaney.³⁶ The approach has drawn significant and persistent criticism on this ground.³⁷

In place of the definitional test, the dissent would run two inquiries drawn from Mullaney. The first asks whether the factor makes a substantial difference in punishment and in the stigma attached to the conviction, and the second asks whether in the Anglo-American legal tradition the factor has historically held that level of importance. A substantial difference in punishment alone is not enough, and if either inquiry is unmet the legislature keeps its traditional authority over matters of proof.³⁸ Applied to New York's statute, the dissent concluded that the allocation was unconstitutional, because emotional disturbance, like heat of passion, makes a critical difference in punishment and stigma and has distinguished manslaughter from murder throughout that tradition.³⁹ The disagreement is one of method. The majority asks what the legislature put in the definition of the offense, while the dissent asks what the contested fact does to the accused. Patterson states the controlling approach: under it and the decisions that followed, the validity of placing a burden on the defendant is primarily a matter of legislative labeling, so a fact labeled an element must be proved by the prosecution beyond a reasonable doubt, while a fact defined as an affirmative defense can in most cases be placed on the defendant.⁴⁰ The dissent's inquiries show what the label can conceal, which is why the limits on the majority's approach matter.

The majority did not treat the label as a blank check. Its own account of Mullaney marks one boundary, because shifting the burden of persuasion on a fact the State deems so important that it must be proved or presumed is impermissible whatever the statute calls that fact.⁴¹ In Apprendi v. New Jersey the Court later observed that the case before it raised no question about a state's power to manipulate the prosecutor's burden by relying on a presumption rather than evidence to establish an element, or by placing the affirmative-defense label on "at least some elements" of traditional crimes.⁴² Those reservations show that the outer edge of the labeling power remains contested. A defense that does no more than deny an element is the plainest example of what lies outside it.

A claim of alibi simply denies that the defendant committed the crime, so requiring the defendant to prove it would make the defendant disprove an element, which the Constitution presumably does not permit.⁴³ On an exam, then, a statute that puts a mitigating or excusing defense on the accused after the State has proved every defined element presents a Patterson question, and the allocation stands. Two opposite errors cost points. One treats Mullaney as requiring the State to disprove every defense, a reading the Court repudiated in Patterson.⁴⁴ The other treats the affirmative-defense label as conclusive and forgets that a defense that simply negates an element cannot be placed on the accused, and that a presumption cannot do the work of proof.