Burden of Persuasion As To Affirmative Defenses

• Jurisdiction: Maryland

II. Burden of persuasion as to affirmative defenses

Those items and facts that are not elements of a crime, and that may render the defendant not criminally liable or not criminally responsible are generally considered "affirmative defenses." This means: "I did the criminal act but, for the following reasons, I should not be held criminally liable." MPC § 1.12(3)(c). The Supreme Court has held that, as to affirmative defense, unlike as to elements, the Due Process Clause permits placing the burden of persuasion on the defendant. In Weems v. State, 203 Md. App. 47 (2012), the Court of Special Appeals held:

An element of a crime is distinct from an affirmative defense to a crime. The State has the burden of proving the elements of a crime beyond a reasonable doubt. An affirmative defense in pleading is a matter asserted by a Defendant, which assuming the charges are otherwise correct, constitutes a defense to the crime. A classic affirmative defense is something that the Defendant must prove, not something that the State must disprove. There is allocated to the Defendant both (a) the burden of initial production, and (b) the burden of ultimate persuasion. But, if what the defense does is actually to negate any element of the crime, such as an alibi, the State retains the burden of proving the lack of the defense beyond a reasonable doubt.

Id. at 59 (internal quotations, citations, and alterations omitted).

In Smith v. United States, 133 S. Ct. 714 (2013), the Supreme Court explained that the State must prove every fact, beyond a reasonable doubt, constituting the crime charged and of the nonexistence of facts negating those elements. The State, however, does not have the burden of negating affirmative defenses beyond a reasonable doubt:

While the Government must prove beyond a reasonable doubt "every fact necessary to constitute the crime with which [the defendant] is charged," Winship, 397 U.S. at 364, "[p]roof of the nonexistence of all affirmative defenses has never been constitutionally required." Patterson v. New York, 432 U.S. 197, 210 (1977). The State is foreclosed from shifting the burden of proof to the Defendant on "when an affirmative defense does negate an element of the crime." Martin v. Ohio, 480 U.S. 228, 237 (1987) (Powell, J., dissenting). Where instead it "excuse[s] conduct that would otherwise be punishable," but "does not controvert any of the elements of the offense itself," the Government has no constitutional duty to overcome the defense beyond a reasonable doubt.

Id. at 719. In Smith, the Court held that the Government did not have to prove the lack of withdrawal, as a defense to conspiracy, beyond a reasonable doubt, stating: "As with other affirmative defenses, the burden is on [the...