§ 7.03 BURDEN OF PERSUASION

• Jurisdiction: North Carolina

§ 7.03. Burden of Persuasion⁸

[A] Nature of the Burden

Once a party satisfies her burden of production pertaining to an issue, that matter is properly before the jury as factfinder, i.e., it will decide whose factual claims are more persuasive. How is the jury supposed to make this determination? Rules are needed to instruct it on how to weigh the conflicting evidence.

The rules establishing the "burden of persuasion" determine who is obligated to convince the jury of the accuracy of the particular factual claim in question. That is, the party who has the burden of persuasion bears the risk of failing to convince the jury that her factual claim is true.

[B] Who Has the Burden?

[1] The Presumption of Innocence: The Winship Doctrine (In General)

The Fifth and Fourteenth Amendments to the United States Constitution provide that a person may not be deprived of her life, liberty, or property without due process of law. Pursuant to the Due Process Clause, a person charged with a crime is presumed innocent and, to enforce this presumption, the Supreme Court held in In re Winship⁹ that the prosecution must persuade the factfinder "beyond a reasonable doubt"—a concept developed more fully later in this chapter section—of "every fact necessary to constitute the crime charged." This rule has come to be known as "the Winship doctrine."

According to Winship, the presumption of innocence "lies at the foundation of the administration of our criminal law." Although this presumption increases the risk that a guilty person will go free, the Winship Court determined that "a society that values the good name and freedom of every individual" does "not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty." Indeed, the law's commitment to protecting the innocent is so great that, according to Blackstone, "the law holds that it is better that ten guilty persons escape, than that one innocent suffer."¹⁰

Winship teaches that the prosecutor must prove (beyond a reasonable doubt) every fact necessary to constitute the crime charged, but what precisely are the "facts" for which the government must constitutionally carry the burden of persuasion? The Supreme Court has had difficulty answering this question.

[2] Mullaney v. Wilbur¹¹

W was charged with murder by a Maine prosecutor. Evidence presented at his trial tended to show that W intentionally killed the victim, but that he may have done so "in the heat of passion on sudden provocation." The trial court instructed the jury that Maine recognized two forms of criminal homicide, murder and manslaughter, and that the common elements of both offenses are that the homicide: (1) was "unlawful — i.e., neither justifiable nor excusable"; and (2) it was committed intentionally. The jury was further instructed that the prosecution was required to prove both of these elements (beyond a reasonable doubt), and only if it met this burden was the jury to consider the distinction between murder and manslaughter.

On the distinction between murder and manslaughter, the trial court further informed the jury that if the prosecution proved that W killed the victim unlawfully and intentionally, then the killing was murder, unless W persuaded the jury by a preponderance of the evidence that the killing was "in the heat of passion on sudden provocation," in which case it constituted the lesser offense of manslaughter. That is, the prosecution had the burden of persuading the jury beyond a reasonable doubt that W unlawfully and intentionally killed the victim; if it did, the burden of persuasion shifted to W to prove that he was provoked into killing the victim in heat of passion. If W failed in this proof, he was guilty of murder; if he succeeded, he was guilty of manslaughter.

W appealed his conviction on the ground that the preceding jury instructions, which placed on him the burden of persuasion that the killing occurred "in the heat of passion on sudden provocation," violated the Winship doctrine. The State of Maine responded, however, that the instructions were constitutional—the prosecution only had the responsibility to prove (beyond a reasonable doubt) that W was guilty of some form of criminal homicide. Under the instructions given, the State of Maine did not require W to prove his innocence; he only had the burden of persuasion regarding his level of guilt (murder versus manslaughter). In such circumstances, the State argued, "the defendant's critical interests in liberty and reputation are no longer of paramount concern since, irrespective of . . . the heat of passion on sudden provocation, he is likely to lose his liberty and certain to be stigmatized."

The Supreme Court disagreed. In an opinion written by Justice Lewis Powell, the Court summarized the historical roots of hom icide law, and concluded that the presence or absence of heat of passion was "the single most important factor in determining the degree of culpability attaching to an unlawful homicide." It observed that "the clear trend has been toward requiring the prosecution to bear the ultimate burden of proving this fact."

The Court criticized Maine's argument as unduly formalistic. It pointed out:

[If the Winship doctrine] were limited to those facts that constitute a crime as defined by state law, a State could undermine many of the interests that [the Due Process Clause] sought to protect without effecting any substantive change in its law. It would only be necessary to redefine the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment.

In contrast to such formalism, the Supreme Court held that the Due Process Clause required the prosecution not only to prove that W was guilty of criminal homicide, but also to persuade the jury regarding the facts relating to W's "degree of criminal culpability."

Although the precise contours of the Mullaney decision are disputed by scholars, one highly plausible interpretation of the opinion was that, once a defendant satisfies her burden of production regarding an affirmative defense, the prosecution is constitutionally required to disprove the defense. This potential reading of Mullaney, however, proved short-lived.

[3] Patterson v. New York¹²

Patterson narrowed the import of Mullaney. Indeed, without saying so expressly, Patterson "signal[ed] that it [believed it] had erred in Mullaney."¹³

In Patterson, P was charged with murder. He believed that he was guilty of the lesser offense of manslaughter because he suffered from what New York law described as an "extreme emotional disturbance." This provision, based on the Model Penal Code,¹⁴ was a broader version of the "heat of passion on sudden provocation" doctrine considered in Mullaney.

Under New York law, murder required proof of three facts: (1) a human death; (2) that the accused caused it; and (3) that the accused intended the result. The homicide statute expressly provided that "extreme emotional disturbance" was an affirmative defense to murder which, if proved by the defendant, reduced the criminal homicide to manslaughter. The jury was instructed consistently with these statutory provisions.

P argued that Mullaney invalidated the statute because the homicide law improperly permitted the State of New York to shift to him the burden of proving his lesser level of culpability due to extreme emotional disturbance. Nonetheless, in an opinion written by Justice Byron White, the Supreme Court upheld the statute. The Court conceded that there was "language in Mullaney that has been understood as perhaps construing the Due Process Clause to...