Burden of Persuasion As To Elements

• Jurisdiction: Maryland

I. Burden of persuasion as to elements

A. Who bears the burden of persuasion as to elements?

The Due Process Clause requires the State to satisfy the burden of persuasion as to every element of the offense and the defendant's criminal agency to a "beyond a reasonable doubt" standard. Mullaney v. Wilbur, 421 U.S. 684, 703-04 (1975); In re Winship, 397 U.S. 358, 369 (1970); see Evans v. State, 28 Md. App. 640 (1975), aff'd, 278 Md. 197 (1976) (applying Mullaney). The burden of persuasion as to elements of a case starts with the State, remains with the State, and can never shift to the defendant.

B. The State cannot be relieved of its burden of persuasion in the following scenarios

1. The State may not use collateral estoppel against the defendant

The Sixth Amendment right to trial by jury permits the defendant to argue against an element of the offense, even though that element was found in favor of the State in another proceeding. United States v. Pelullo, 14 F.3d 881, 892 (3d Cir. 1994). In State v. Allen, 423 Md. 208, 210 (2011), the Court of Appeals, relying on Pelullo and other cases, held that the defendant may argue that he is not guilty of the underlying felony in a felony murder trial, despite the fact that the defendant had already been convicted of that crime by a different jury. The State may not collaterally estop the defendant from arguing his innocence of the underlying felony because "[t]he potency of the Sixth Amendment right to a fair trial relies on the promise that a defendant's fate will be determined by an impartial fact finder who depends solely on the evidence and argument introduced in open court." Id. at 226 (internal citation omitted).

2. The trial court may not make a finding of an element during a jury trial

In Nash v. State, 191 Md. App. 386, 401-02, cert. denied, 415 Md. 42 (2010), the Court of Special Appeals held that the trial court erred in making a determination of the defendant's status as a convicted felon and instructing the jury to reach a verdict only as to possession of a firearm.

3. [T]he trial court may not instruct the jury that there is a rebuttable presumption in favor of the State

In Francis v. Franklin, 471 U.S. 307 (1985), the Supreme Court held that it violates the Due Process Clause to permit a mandatory presumption that relieves the State of the burden of persuasion as to an element of an offense. The Court found that a reasonable juror could have understood the jury instruction, regarding the mental...