Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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E. Allocation and Presumptions in Criminal Cases (1075)

Problem - Criminal Allocation in Idylia (1075)

The point:

If the state were free to allocate the elements of proof in criminal cases to the defendant as affirmative defenses, the state could effectively subvert the presumption of innocence by allocating the proof of minimal elements to the prosecution and proof of all major issues to the defendant as affirmative defenses.

Answer and Analysis:

The problem introduces Mullaney and Patterson, and poses the question whether there are minimum constitutional requirements for the definition of crimes. Put another way, are there elements of crimes which the constitution requires states to prove as part of the case in chief, and which, therefore, states are not allowed to allocate to the defendant as affirmative defenses?

It seems obvious that there should (must) be some substantive limitation on a state's freedom to define crimes, yet the development of such theory has been extremely limited. The most thorough and interesting discussion of the problem is Jeffries and Stephan, Defenses. Presumptions and Burden of Proof in the Criminal Law, 88 YALE LJ. 1325 (1979).

Mullaney v. Wilbur, 421 U.S. 684 (1975) (1076)and

Patterson v. New York, 432 U.S. 197 (1977) (1077)

In In Re Winship, the United States Supreme Court announced that the prosecution was constitutionally obliged in a criminal case to prove each and every element of the criminal offense by proof beyond reasonable doubt. That left open the question of how "elements" could be defined and whether the obligation to prove an element beyond reasonable doubt could be avoided by making the negative of the element an affirmative defense, that is, by allocating the starting assumption with respect to the issue to the defendant.

In Mullaney the Supreme Court appeared to take a radical leap into substantive limitation theory, suggesting that the state was obliged to prove beyond reasonable doubt all facts relating to stigma, guilt, or punishment. The Court's apparent logic called into question all affirmative defenses and presumptions in criminal cases. The opinion could not have been meant to reach so far, yet it was hard to see any theoretical stopping place.

Then in Patterson the Court appeared to reverse field entirely, virtually overruling Mullaney, yet without purporting to do so.

The only viable distinction between the two cases rests on a theory that the. Court was allocate a constitutional interest in procedural regularity, and that the presumption at issue in Mullaney undermined this interest, while the allocation accomplished by the statute at issue in Patterson did not. As applied to Mullaney the argument is that a state cannot articulate an issue as an element of the state's case, and then compromise the integrity of the court's adjudication of the issue by requiring the court to use a presumption which shifts the burden of proving the issue to the defendant. The objectionable feature is the razzle-dazzle, now-you-see-it, now-you-don't quality of the procedure; it looks as if the state had to prove killing with malice aforethought, but when the case is tried, it turns out that the defendant has to prove that he did not act with malice aforethought. Patterson differs because the state never made it look as if it would prove malice aforethought in the first place.

The distinction, albeit a small one, is real, and the interest in procedural regularity is sensible, yet it is surely no substitute for a satisfying theory of substantive limitation. The problem is that no one has come up with anything better.

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