10.4 Burdens of Proof and Presumptions

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

10.4 BURDENS OF PROOF AND PRESUMPTIONS

10.401 Background. One of the more significant developments in constitutional criminal procedure is the heightened awareness of the role of burdens of proof and presumptions in criminal cases. The Supreme Court first considered the problem in In re Winship. ⁶⁷ In Winship, the Court held that due process of law requires the government to sustain the burden of proof beyond a reasonable doubt in all criminal cases. ⁶⁸ Standing alone, Winship had little impact on the criminal process since the principle it enunciated had already been universally applied (except in juvenile cases). When considered in the context of affirmative defenses and presumptions in criminal cases, however, Winship and its progeny have created a number of difficult problems. These problems include situations in which the government: (i) seeks to shift to the defendant the burden of coming forward with evidence, rather than shifting the burden of proof; (ii) argues that the burden of proof rests with the defendant to mitigate punishment rather than the degree of the offense; and (iii) seeks to meet its burden of proof by the operation of a presumption that the defense can negate only by producing evidence.

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10.402 Shifting the Burden to the Defendant. The Supreme Court's first major decision following Winship was Mullaney v. Wilbur. ⁶⁹ Mullaney involved a Maine statute that required a defendant charged with murder to carry the burden of proof that he or she acted in the heat of passion or on sudden provocation in order to reduce the charge to manslaughter. Under the Maine statute, in order to convict on a charge of murder, the government had to prove beyond a reasonable doubt the elements of murder: an intentional killing with malice aforethought. The Court decided that shifting the burden of proof to the defendant was a violation of due process and that it was incumbent on the government to carry the burden of proof beyond a reasonable doubt to prove the absence of heat of passion or provocation when that issue was presented.

Two years after Mullaney, the Court decided Patterson v. New York, ⁷⁰ a case that cast doubt on the scope of Mullaney. Patterson involved a New York statute that provided that an "intentional homicide" would be murder unless the defense could prove by a preponderance of the evidence that the defendant was under the influence of an extreme emotional disturbance. The Court distinguished Mullaney and upheld the New York statute, finding that the presence of an extreme emotional disturbance was an affirmative defense rather than its absence being an element of murder. The Court stated that Mullaney did not require the state to disprove beyond a reasonable doubt every conceivable affirmative defense. At the same time Patterson was decided, the Court dismissed for want of a substantial federal question a case from Delaware in which the state courts had approved placing the burden of persuasion on the defense to prove insanity. ⁷¹

Attempts to reconcile Mullaney and Patterson have produced numerous problems for the lower courts. The problems frequently arise in cases where the state attempts to define various degrees of an offense and to shift to the defense the burden of proof to reduce the degree. Another consideration is that, although neither case has been explicitly overruled, the reasoning has likely been undermined by cases like Apprendi v. New Jersey, ⁷² where the Court held that it was unconstitutional for a legislature to remove the assessment of facts that increase the prescribed range of penalties from the jury, stating that those facts must be proved beyond a reasonable doubt.

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In Virginia, an example of these problems has occurred in drug-related offenses in connection with the "accommodation defense." The Virginia Supreme Court has held that the predecessor to section 18.2-248 of the Virginia Code created a single offense and that the "accommodation" defense is, in reality, simply in mitigation of punishment. ⁷³ Under this type of statutory scheme, once the Commonwealth carries the burden of proving possession with intent to distribute (and guilt), a second determination relating to the proper punishment will be made. The burden of proof on the issue of an accommodation distribution rests with the defense. In other words, there is a presumption against an accommodation distribution to the extent that it is relevant to the degree of punishment. This process does not violate Mullaney. ⁷⁴

The Virginia Supreme Court also has dealt with Mullaney in the context of the murder statute. The court...