Section 20.22 Defense Evidence

• Library: Criminal Practice 2012 Supp

XI. (§20.22) Defense Evidence

Unlike civil cases, the defendant will not usually have the burden of proof on what would in civil cases be considered “affirmative defenses.” These include such things as alibis, entrapment, self-defense, accident, and duress. These situations require that, once there has been some evidence that would warrant a finding of the particular defense, the burden shifts to the state to disprove that defense. These are generally referred to as “special negative defenses.” An exception is the defense of not guilty by reason of mental disease or defect, in which case the defendant carries the burden of proof on the existence of the defense and the jury is so instructed.

Chapter 14 of this deskbook deals specifically with defenses; Chapter 24 deals with instructions and is, therefore, directly related to defenses. In keeping with the concept that the purpose of this chapter is to discuss how to try a criminal case rather than to give a detailed discussion of substantive law, those chapters should both be read in conjunction with this section.

As previously noted, the defendants have the option of resting their cases without offering any defensive evidence because the burden of proof remains with the state. Before exercising this option...