Georgia's Safe Harbor Ruling for Affirmative Defenses in Criminal Cases Should Be Revisited

JurisdictionGeorgia,United States
Publication year2016
CitationVol. 68 No. 1

Georgia's Safe Harbor Ruling for Affirmative Defenses in Criminal Cases Should Be Revisited

Ben W. Studdard

Michal A. Arndt

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Special Contribution


Georgia's Safe Harbor Ruling for Affirmative Defenses in Criminal Cases Should Be Revisited


by Judge Ben W. Studdard*
and Michael A. Arndt**

The State has the entire burden of proving the defendant's guilt of the offense charged beyond a reasonable doubt, reads the instruction given to every jury empaneled to try a criminal case in Georgia.1 The defendant has no burden of proof at all. Where the evidence raises a defense, the burden remains with the State to negate or disprove that defense beyond a reasonable doubt.2 But those same Georgia citizens, when summoned to federal jury service, may hear a very different instruction: that the defendant, upon raising an affirmative defense, has the burden of proof as to that defense, by a preponderance of the evidence.3

What explains the distinction? This Article aims for a complete, concise history of the issue in hopes of prompting the Georgia Supreme Court

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to remove our jurisprudence from a safe harbor that has long lost its utility.

The Article proceeds in three parts. Part One looks to Blackstone's rule that the criminal defendant always bears the burden of affirmative defenses. Though simple and clear, Blackstone's rule cannot be thoughtlessly transplanted to modern times because the two systems of criminal law are fundamentally different. Part Two looks at insanity, the original caveat to Blackstone's clear-cut rule. Insanity is the most prominent affirmative defense and, generally, is an area of law unto itself. When considering insanity, the United States Supreme Court opened the door for other affirmative defense challenges, which came in the 1970s. During this time of uncertainty, in State v. Moore,4 Georgia adopted the safest course by requiring the State to disprove all affirmative defenses. Finally, in Part Three, we explain how federal law quickly resolved the uncertainty by providing that defendants could bear the burden of persuasion for affirmative defenses that did not involve the elements of an offense. We provide examples of how other states have dealt with the issue and show that Georgia is in the minority of states. We conclude by urging the Georgia Supreme Court, when presented with the issue, to justify our continued adherence to Moore or replace it with a rule that is easy to administer, comports with modern notions of due process, and promotes just outcomes.

I. Blackstone's Highly Administrable Categorical Rule

During colonial times and early union days, the common law of England had but a few mouthpieces. Of this fairly selective fraternity, none is better known than William Blackstone.5 It comes as little surprise, then, that arguments in legal history often begin and end with a pithy statement from Blackstone. And it is so here: cases considering the burden of persuasion in criminal cases rarely fail to include a citation to Blackstone.6 Blackstone explained the rule that affirmative defenses were matters for the defendant to prove.7

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The simple rule, that defendants must prove all affirmative defenses, is a product of the time. As such, we should exercise caution before transplanting the rule without first considering the surrounding context.8 For example, Blackstone's simple answer cites a single case for the proposition. The case, at the special verdict stage, relies on logic that has since been found to be at odds with our Due Process Clause9 and might refer to the burden of production (rather than the burden of persuasion).

Both Blackstone and his predecessor in commentary, Sir Michael Foster (judge and author of the influential Crown Law),10 cite only Oneby's Case11 for the proposition that the defendant should bear the burden.12 In that case, the parties reached the King's Bench on a special verdict, meaning the facts had been established and malice was the only question remaining. If found, the defendant would be guilty of murder; if not found, defendant would only be guilty of manslaughter.13 The King's Bench determined it was murder with the following logic: "if A kills B and no sudden quarrel appears, it is murder, for it lies upon the party indicted, to prove the sudden quarrel."14 Perhaps better, the defendant's

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silence on the question of malice effectively established it and he was convicted of murder.15 Taking this ruling—where the Court decided which crime was most appropriate for a party already found to be guilty of something—and applying it to all criminal cases at the fact-finding phase is, at minimum, an extension that should be justified by argument rather than simply accepted as proper homage to our wiser forebears. The difficulty with any such argument is the Supreme Court has since ruled a presumption of malice unconstitutional.16 Oneby's ruling, effectively shifting the burden of proof on the element of malice, was found to be at odds with our Due Process Clause.17

Along the same lines, burden shifting was less odious in England because its criminal law was quite a bit like its civil law. English criminal law's "principal distinctive peculiarity, [is] the degree to which a criminal trial resembles a private litigation."18 In common law England, private citizens, not prosecutors, tried criminal cases.19 With this power came control and responsibility: "A private person could manage his whole prosecution just as he would manage a civil case. If one chose to prosecute, then one bore the cost of the proceedings."20 The system was thus one-on-one, citizen against citizen.

As a result, "English common law did not make the sharp division between civil wrongs and criminal wrongs."21 Conversely, in America, criminal law is said to be public law where society punishes an actor while civil law is (generally) private law between two equal citizens.22 For the

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former, we guard against the awesome power of the state with the presumption of innocence, the right against self-incrimination, the right to confront your accusers, and the requirement that the state make its case beyond a reasonable doubt. For the latter, the parties' parity obviates such thumbing the scales: we presume a fair fight.

Since the parties enjoy equal footing in civil cases, we can shift burdens based on practical considerations like who has the better access to the evidence. In criminal cases, on the other hand, principle does not always yield to practicality. In Mullaney,23 for example, the Supreme Court explained "although intent is typically considered a fact peculiarly within the knowledge of the defendant, this does not, as the Court has long recognized, justify shifting the burden to him."24 Unlike early English courts, then, we ought to have a different criterion when considering whether to shift the burden of persuasion onto criminal defendants.

Conformity with historical practice is a poor candidate for such a criterion since it is neither inherently good nor bad. As the foregoing suggests, context matters. We cannot simply excise a quote from Blackstone without considering what prompted it and how it fits into our modern conception of criminal due process. As one scholar explains, "criminal defendants in the late eighteenth and early nineteenth centuries did not benefit from a presumption of innocence but, rather, struggled against a statutory presumption of guilt."25 Thus, clinging to Oneby's Rule just because it represents the common law is no answer to our current conundrum.

II. Insanity Creates Uncertainty and Georgia Finds a Safe Harbor

Insanity complicates Blackstone's categorical rule and altered the landscape for affirmative defenses in America. Originally handled in a separate proceeding than the trial and, later, alternating between a defense and an element, insanity opened the door for the affirmative defense challenges in the 1970s. In this time of uncertainty, Georgia played it safe by requiring the state to disprove all affirmative defenses.

Insanity is, of course, a very old concept that appears in several foundational religious and philosophical texts. The Talmud, for example, states that "[n]o person sins until a spirit of insanity enters him."26 Likewise, Christians recognize several passages relating to insanity in the

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Bible.27 Plato, in his ideal society, would have limited punishment for the insane.28 Shakespeare's frequent depictions of the mad or those feigning madness have inspired spirited debate for centuries.29

Later, the Justinian Code distinguished between the sane and insane. And, if found, insanity was a complete defense, in both criminal and tort law, under Roman law.30

Early English law followed this Roman idea of insanity as a complete "defense," though generally not at trial. Originally, English law required convictions of the insane who would then make a plea for pardon to the King, who frequently obliged.31 Thus, insanity was a "tool for pardon" rather than a defense.32

Under the rule of Edward I (1272-1307 C.E.), "complete madness" became a defense that a defendant could use at trial, though the first acquittal of record was centuries later in 1505.33 The standard for the defense, which became insanity, transitioned from a (1) (doubtless religiously inspired) ability to tell right from wrong to the (2) "wild beast" test to a (3) short-lived control test before settling on the popular (4) M'Naghten test in the middle of the nineteenth century.34

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Culpability sits behind each of the formulations: the English system did not want to punish those who were not morally blameworthy.35 Be they "wild beasts" or simply "incapable of telling right from wrong," some people were found not to have sufficient mental capacity to punish.36

Following English common law, American jurisprudence recognized an insanity defense. Determining who was insane was not necessarily an easy task, complicated further by the...

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