Under the Ohio Revised Code (Code), the burden of proving the
elements of a criminal offense is upon the prosecution, but, for an
affirmative defense, the burden of proof by a preponderance of the
evidence is placed on the accused. Self-defense is an affirmative
defense under Ohio law, and therefore must be proved by the
defendant. Petitioner was charged by Ohio with aggravated murder,
which is defined as "purposely, and with prior calculation and
design, causing the death of another." She pleaded self-defense,
and testified that she had shot and killed her husband when he came
at her following an argument during which he had struck her. As to
the crime itself, the jury was instructed (1) that, to convict, it
must find, in light of all the evidence, that each of the elements
of aggravated murder was proved by the State beyond reasonable
doubt, and that the burden of proof with respect to those elements
did not shift; and (2) that, to find guilt, it must be convinced
that none of the evidence, whether offered by the State or by
petitioner in connection with her self-defense plea, raised a
reasonable doubt that she had killed her husband, that she had the
specific purpose and intent to cause his death, or that she had
done so with prior calculation and design. However, as to
self-defense, the jury was instructed that it could acquit if it
found by a preponderance of the evidence that petitioner had proved
(1) that she had not precipitated the confrontation with her
husband; (2) that she honestly believed she was in imminent danger
of death or great bodily harm and that her only means of escape was
to use force; and (3) that she had satisfied any duty to retreat or
avoid danger. The jury found her guilty, and both the Ohio Court of
Appeals and Supreme Court affirmed the conviction, rejecting
petitioner's Due Process Clause challenge, which was based on the
charge's placing on her the self-defense burden of proof. In
reaching its decision, the State Supreme Court relied on
Patterson v. New York, 432 U. S. 197.
Held:
1. Neither Ohio law nor the above instructions violate the Due
Process Clause of the Fourteenth Amendment by shifting to
petitioner the State's burden of proving the elements of the crime.
The instructions, when read as a whole, do not improperly suggest
that self-defense evidence could not be considered in determining
whether there was reasonable doubt about the sufficiency of the
State's proof of the crime's elements.
Page 480 U. S. 229
Furthermore, simply because evidence offered to support
self-defense might negate a purposeful killing by prior calculation
and design does not mean that elements of the crime and
self-defense impermissibly overlap, since evidence creating a
reasonable doubt about any fact necessary for a finding of guilt
could easily fall far short of proving self-defense by a
preponderance of the evidence, but, on the other hand, a killing
will be excused if self-defense is satisfactorily established even
if there is no reasonable doubt in the jury's mind that the
defendant is guilty. Pp.
480 U. S.
233-234.
2. It is not a violation of the Due Process Clause for Ohio to
place the burden of proving self-defense on a defendant charged
with committing aggravated murder. There is no merit to
petitioner's argument that it is necessary under Ohio law for the
State to disprove self-defense, since both unlawfulness and
criminal intent are elements of serious offenses, while
self-defense renders lawful that which would otherwise be a crime,
and negates a showing of criminal intent. The Court will follow
Ohio courts that have rejected this argument, holding that
unlawfulness in such cases is the conduct satisfying the elements
of aggravated murder, and that the necessary mental state for this
crime is the specific purpose to take life pursuant to prior
calculation and design. Furthermore, the mere fact that all but two
States have abandoned the common law rule that affirmative
defenses, including self-defense, must be proved by the defendant
does not render that rule unconstitutional. The Court will follow
Patterson and other of its decisions which allowed States
to fashion their own affirmative defense burden of proof rules. Pp.
480 U. S.
235-236
21 Ohio St.3d 91, 488 N.E.2d 166, affirmed.
WHITE, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and STEVENS, O'CONNOR, and SCALIA, JJ., joined.
POWELL, J., filed a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined, and in Parts I and III of which BLACKMUN,
J., joined,
post, p.
480 U. S.
236.
Page 480 U. S. 230
JUSTICE WHITE delivered the opinion of the Court.
The Ohio Code provides that
"[e]very person accused of an offense is presumed innocent until
proven guilty beyond a reasonable doubt, and the burden of proof
for all elements of the offense is upon the prosecution. The burden
of going forward with the evidence of an affirmative defense, and
the burden of proof by a preponderance of the evidence, for an
affirmative defense, is upon the accused."
Ohio Rev.Code Ann. § 2901.05(A)(1982). An affirmative defense is
one involving
"an excuse or justification peculiarly within the knowledge of
the accused, on which he can fairly be required to adduce
supporting evidence."
Ohio Rev.Code Ann. § 2901.05(C)(2)(1982). The Ohio courts have
"long determined that self-defense is an affirmative defense," 21
Ohio St.3d 91, 93, 488 N.E.2d 166, 168 (1986), and that the
defendant has the burden of proving it as required by §
2901.05(A).
As defined by the trial court in its instructions in this case,
the elements of self-defense that the defendant must prove are that
(1) the defendant was not at fault in creating the situation giving
rise to the argument; (2) the defendant had an honest belief that
she was in imminent danger of death or great bodily harm, and that
her only means of escape from such danger was in the use of such
force; and (3) the defendant did not violate any duty to retreat or
avoid danger. App. 19. The question before us is whether the Due
Process Clause of the Fourteenth Amendment forbids placing the
burden of proving self-defense on the defendant when she is charged
by the State of Ohio with committing the crime of aggravated
murder, which, as relevant to this case, is defined by the Revised
Code of Ohio as "purposely, and with prior calculation and design,
caus[ing] the death of another." Ohio Rev.Code Ann. § 2903.01
(1982).
The facts of the case, taken from the opinions of the courts
below, may be succinctly stated. On July 21, 1983, petitioner
Earline Martin and her husband, Walter Martin,
Page 480 U. S. 231
argued over grocery money. Petitioner claimed that her husband
struck her in the head during the argument. Petitioner's version of
what then transpired was that she went upstairs, put on a robe, and
later came back down with her husband's gun, which she intended to
dispose of. Her husband saw something in her hand and questioned
her about it. He came at her, and she lost her head and fired the
gun at him. Five or six shots were fired, three of them striking
and killing Mr. Martin. She was charged with and tried for
aggravated murder. She pleaded self-defense, and testified in her
own defense. The judge charged the jury with respect to the
elements of the crime and of self-defense, and rejected
petitioner's Due Process Clause challenge to the charge placing on
her the burden of proving self-defense. The jury found her
guilty.
Both the Ohio Court of Appeals and the Supreme Court of Ohio
affirmed the conviction. Both rejected the constitutional challenge
to the instruction requiring petitioner to prove self-defense. The
latter court, relying upon our opinion in
Patterson v. New
York, 432 U. S. 197
(1977), concluded that the State was required to prove the three
elements of aggravated murder, but that
Patterson did not
require it to disprove self-defense, which is a separate issue that
did not require Mrs. Martin to disprove any element of the offense
with which she was charged. The court said,
"the state proved beyond a reasonable doubt that appellant
purposely, and with prior calculation and design, caused the death
of her husband. Appellant did not dispute the existence of these
elements, but rather sought to justify her actions on grounds she
acted in self-defense."
21 Ohio St.3d at 94, 488 N.E.2d at 168. There was thus no
infirmity in her conviction. We granted certiorari, 475 U.S. 1119
(1986), and affirm the decision of the Supreme Court of Ohio.
In re Winship, 397 U. S. 358,
397 U. S. 364
(1970), declared that the Due Process Clause
"protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact
Page 480 U. S. 232
necessary to constitute the crime with which he is charged."
A few years later, we held that
Winship's mandate was
fully satisfied where the State of New York had proved beyond
reasonable doubt each of the elements of murder, but placed on the
defendant the burden of proving the affirmative defense of extreme
emotional disturbance, which, if proved, would have reduced the
crime from murder to manslaughter.
Patterson v. New York,
supra. We there emphasized the preeminent role of the States
in preventing and dealing with crime, and the reluctance of the
Court to disturb a State's decision with respect to the definition
of criminal conduct and the procedures by which the criminal laws
are to be enforced in the courts, including the burden of producing
evidence and allocating the burden of persuasion. 432 U.S. at
432 U. S.
201-202. New York had the authority to define murder as
the intentional killing of another person. It had chosen, however,
to reduce the crime to manslaughter if the defendant proved by a
preponderance of the evidence that he had acted under the influence
of extreme emotional distress. To convict of murder, the jury was
required to find beyond a reasonable doubt, based on all the
evidence, including that related to the defendant's mental state at
the time of the crime, each of the elements of murder, and also to
conclude that the defendant had not proved his affirmative defense.
The jury convicted Patterson, and we held there was no violation of
the Fourteenth Amendment as construed in
Winship.
Referring to
Leland v. Oregon, 343 U.
S. 790 (1952), and
Rivera v. Delaware,
429 U. S. 877
(1976), we added that New York "did no more than
Leland
and
Rivera permitted it to do without violating the Due
Process Clause," and declined to reconsider those cases. 432 U.S.
at
432 U. S. 206,
432 U. S. 207.
It was also observed that
"the fact that a majority of the States have now assumed the
burden of disproving affirmative defenses -- for whatever reasons
-- [does not] mean that those States that strike a different
balance are in violation of the Constitution."
Id. at
432 U. S.
211.
Page 480 U. S. 233
As in
Patterson, the jury was here instructed that, to
convict, it must find, in light of all the evidence, that each of
the elements of the crime of aggravated murder has been proved by
the State beyond reasonable doubt, and that the burden of proof
with respect to these elements did not shift. To find guilt, the
jury had to be convinced that none of the evidence, whether offered
by the State or by Martin in connection with her plea of
self-defense, raised a reasonable doubt that Martin had killed her
husband, that she had the specific purpose and intent to cause his
death, or that she had done so with prior calculation and design.
It was also told, however, that it could acquit if it found by a
preponderance of the evidence that Martin had not precipitated the
confrontation, that she had an honest belief that she was in
imminent danger of death or great bodily harm, and that she had
satisfied any duty to retreat or avoid danger. The jury convicted
Martin.
We agree with the State and its Supreme Court that this
conviction did not violate the Due Process Clause. The State did
not exceed its authority in defining the crime of murder as
purposely causing the death of another with prior calculation or
design. It did not seek to shift to Martin the burden of proving
any of those elements, and the jury's verdict reflects that none of
her self-defense evidence raised a reasonable doubt about the
State's proof that she purposefully killed with prior calculation
and design. She nevertheless had the opportunity, under state law
and the instructions given, to justify the killing and show herself
to be blameless by proving that she acted in self-defense. The jury
thought she had failed to do so, and Ohio is as entitled to punish
Martin as one guilty of murder as New York was to punish
Patterson.
It would be quite different if the jury had been instructed that
self-defense evidence could not be considered in determining
whether there was a reasonable doubt about the State's case,
i.e., that self-defense evidence must be put aside for all
purposes unless it satisfied the preponderance
Page 480 U. S. 234
standard. Such an instruction would relieve the State of its
burden and plainly run afoul of
Winship's mandate. 397
U.S. at
397 U. S. 364.
The instructions in this case could be clearer in this respect,
but, when read as a whole, we think they are adequate to convey to
the jury that all of the evidence, including the evidence going to
self-defense, must be considered in deciding whether there was a
reasonable doubt about the sufficiency of the State's proof of the
elements of the crime.
We are thus not moved by assertions that the elements of
aggravated murder and self-defense overlap in the sense that
evidence to prove the latter will often tend to negate the former.
It may be that most encounters in which self-defense is claimed
arise suddenly, and involve no prior plan or specific purpose to
take life. In those cases, evidence offered to support the defense
may negate a purposeful killing by prior calculation and design,
but Ohio does not shift to the defendant the burden of disproving
any element of the state's case. When the prosecution has made out
a
prima facie case and survives a motion to acquit, the
jury may nevertheless not convict if the evidence offered by the
defendant raises any reasonable doubt about the existence of any
fact necessary for the finding of guilt. Evidence creating a
reasonable doubt could easily fall far short of proving
self-defense by a preponderance of the evidence. Of course, if such
doubt is not raised in the jury's mind and each juror is convinced
that the defendant purposely and with prior calculation and design
took life, the killing will still be excused if the elements of the
defense are satisfactorily established. We note here, but need not
rely on, the observation of the Supreme Court of Ohio that
"[a]ppellant did not dispute the existence of [the elements of
aggravated murder], but rather sought to justify her actions on
grounds she acted in self-defense."
21 Ohio St.3d at 94, 488 N.E.2d at 168.
*
Page 480 U. S. 235
Petitioner submits that there can be no conviction under Ohio
law unless the defendant's conduct is unlawful, and that, because
self-defense renders lawful what would otherwise be a crime,
unlawfulness is an element of the offense that the state must prove
by disproving self-defense. This argument founders on state law,
for it has been rejected by the Ohio Supreme Court and by the Court
of Appeals for the Sixth Circuit.
White v. Arn, 788 F.2d
338, 346-347 (1986);
State v. Morris, 8 Ohio App.3d 12,
18-19, 455 N.E.2d 1352, 1359-1360 (1982). It is true that
unlawfulness is essential for conviction, but the Ohio courts hold
that the unlawfulness in cases like this is the conduct satisfying
the elements of aggravated murder -- an interpretation of state law
that we are not in a position to dispute. The same is true of the
claim that it is necessary to prove a "criminal" intent to convict
for serious crimes, which cannot occur if self-defense is shown:
the necessary mental state for aggravated murder under Ohio law is
the specific purpose to take life pursuant to prior calculation and
design.
See White v. Arn, supra, at 346.
As we noted in
Patterson, the common law rule was that
affirmative defenses, including self-defense, were matters for the
defendant to prove.
"This was the rule when the Fifth Amendment was adopted, and it
was the American rule when the Fourteenth Amendment was
ratified."
432 U.S. at
432 U. S. 202.
Indeed, well into this century, a number of States followed the
common law rule and required a defendant to shoulder the burden of
proving that he acted in self-defense. Fletcher, Two Kinds of Legal
Rules: A Comparative Study of Burden-of-Persuasion Practices in
Criminal Cases, 77 Yale
Page 480 U. S. 236
L.J. 880, 882, and n. 10 (1968). We are aware that all but two
of the States, Ohio and South Carolina, have abandoned the common
law rule and require the prosecution to prove the absence of
self-defense when it is properly raised by the defendant. But the
question remains whether those States are in violation of the
Constitution; and, as we observed in
Patterson, that
question is not answered by cataloging the practices of other
States. We are no more convinced that the Ohio practice of
requiring self-defense to be proved by the defendant is
unconstitutional than we are that the Constitution requires the
prosecution to prove the sanity of a defendant who pleads not
guilty by reason of insanity. We have had the opportunity to depart
from
Leland v. Oregon, 343 U. S. 790
(1952), but have refused to do so.
Rivera v. Delaware,
429 U. S. 877
(1976). These cases were important to the
Patterson
decision, and they, along with
Patterson, are authority
for our decision today.
The judgment of the Ohio Supreme Court is accordingly
Affirmed.
* The dissent believes that the self-defense instruction might
have led the jury to believe that the defendant had the burden of
proving the absence of prior calculation and design. Indeed, its
position is that
no instruction could be clear enough not
to mislead the jury. As is evident from the text, we disagree. We
do not harbor the dissent's mistrust of the jury, and the
instructions were sufficiently clear to convey to the jury that the
State's burden of proving prior calculation did not shift, and that
self-defense evidence had to be considered in determining whether
the State's burden had been discharged. We do not depart from
Patterson v. New York, 432 U. S. 197
(1977), in this respect or in any other.
JUSTICE POWELL, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, and with whom JUSTICE BLACKMUN joins with respect to Parts I
and III, dissenting.
Today the Court holds that a defendant can be convicted of
aggravated murder even though the jury may have a reasonable doubt
whether the accused acted in self-defense, and thus whether he is
guilty of a crime. Because I think this decision is inconsistent
with both precedent and fundamental fairness, I dissent.
I
Petitioner Earline Martin was tried in state court for the
aggravated murder of her husband. Under Ohio law, the elements of
the crime are that the defendant has purposely killed another with
"prior calculation and design." Ohio Rev.Code Ann. § 2903.01
(1982). Martin admitted that she
Page 480 U. S. 237
shot her husband, but claimed that she acted in self-defense.
Because self-defense is classified as an "affirmative" defense in
Ohio, the jury was instructed that Martin had the burden of proving
her claim by a preponderance of the evidence. Martin apparently
failed to carry this burden, and the jury found her guilty.
The Ohio Supreme Court upheld the conviction, relying in part on
this Court's opinion in
Patterson v. New York,
432 U. S. 197
(1977). The Court today also relies on the
Patterson
reasoning in affirming the Ohio decision. If one accepts
Patterson as the proper method of analysis for this case,
I believe that the Court's opinion ignores its central meaning.
In
Patterson, the Court upheld a state statute that
shifted the burden of proof for an affirmative defense to the
accused. New York law required the prosecutor to prove all of the
statutorily defined elements of murder beyond a reasonable doubt,
but permitted a defendant to reduce the charge to manslaughter by
showing that he acted while suffering an "extreme emotional
disturbance."
See N.Y.Penal Law §§ 125.25, 125.20
(McKinney 1975 and Supp. 1987). The Court found that this burden
shifting did not violate due process, largely because the
affirmative defense did "not serve to negative any facts of the
crime which the State is to prove in order to convict of murder."
432 U.S. at
432 U. S. 207.
The clear implication of this ruling is that, when an affirmative
defense
does negate an element of the crime, the state may
not shift the burden.
See White v. Arn, 788 F.2d 338,
344-345 (CA6 1986). In such a case,
In re Winship,
397 U. S. 358
(1970), requires the state to prove the nonexistence of the defense
beyond a reasonable doubt.
The reason for treating a defense that negates an element of the
crime differently from other affirmative defenses is plain. If the
jury is told that the prosecution has the burden of proving all the
elements of a crime, but then also is instructed
Page 480 U. S. 238
that the defendant has the burden of disproving one of those
same elements, there is a danger that the jurors will resolve the
inconsistency in a way that lessens the presumption of innocence.
For example, the jury might reasonably believe that, by raising the
defense, the accused has assumed the ultimate burden of proving
that particular element. Or, it might reconcile the instructions
simply by balancing the evidence that supports the prosecutor's
case against the evidence supporting the affirmative defense, and
conclude that the state has satisfied its burden if the
prosecution's version is more persuasive. In either case, the jury
is given the unmistakable but erroneous impression that the
defendant shares the risk of nonpersuasion as to a fact necessary
for conviction. [
Footnote
1]
Given these principles, the Court's reliance on
Patterson is puzzling. Under Ohio law, the element of
"prior calculation and design" is satisfied only when the accused
has engaged in a "definite process of reasoning
in advance
of the killing,"
i.e., when he has given the plan at least
some "studied consideration." App. 14 (jury instructions) (emphasis
added). In contrast, when a defendant such as Martin raises a claim
of
Page 480 U. S. 239
self-defense, the jury also is instructed that the accused must
prove that she "had an honest belief that she was in
imminent danger of death or great bodily harm." [
Footnote 2]
Id. at 19
(emphasis added). In many cases, a defendant who finds himself in
immediate danger and reacts with deadly force will not have formed
a prior intent to kill. The Court recognizes this when it
states:
"It may be that most encounters in which self-defense is claimed
arise suddenly and involve no prior plan or specific purpose to
take life. In those cases, evidence offered to support the defense
may negate a purposeful killing by prior calculation and design. .
. ."
Ante at
480 U. S. 234.
Under
Patterson, this conclusion should suggest that Ohio
is precluded from shifting the burden as to self-defense. The Court
nevertheless concludes that Martin was properly required to prove
self-defense, simply because "Ohio does not shift to the defendant
the burden of disproving any element of the state's case."
Ibid.
The Court gives no explanation for this apparent rejection of
Patterson. The only justification advanced for the Court's
decision is that the jury could have used the evidence of
self-defense to find that the State failed to carry its burden of
proof. Because the jurors were free to consider both Martin's and
the State's evidence, the argument goes, the verdict of guilt
necessarily means that they were convinced that the defendant acted
with prior calculation and design, and were unpersuaded that she
acted in self-defense.
Ante at
480 U. S. 233.
The Court thus seems to conclude that, as long as the jury is told
that the state has the burden of proving all elements of the crime,
the overlap between the offense and defense is immaterial.
Page 480 U. S. 240
This reasoning is flawed in two respects. First, it simply
ignores the problem that arises from inconsistent jury instructions
in a criminal case. The Court's holding implicitly assumes that the
jury in fact understands that the ultimate burden remains with the
prosecutor at all times, despite a conflicting instruction that
places the burden on the accused to disprove the same element. But,
as pointed out above, the
Patterson distinction between
defenses that negate an element of the crime and those that do not
is based on the legitimate concern that the jury
will
mistakenly lower the state's burden. In short, the Court's
rationale fails to explain why the overlap in this case does not
create the risk that
Patterson suggested was unacceptable.
[
Footnote 3]
Second, the Court significantly, and without explanation,
extends the deference granted to state legislatures in this area.
Today's decision could be read to say that virtually all state
attempts to shift the burden of proof for affirmative defenses will
be upheld, regardless of the relationship between the elements of
the defense and the elements of the crime. As I understand it,
Patterson allowed burden-shifting because evidence of an
extreme emotional disturbance did not negate the
mens rea
of the underlying offense. After today's decision, however, even if
proof of the defense
does negate an element of the
offense, burden-shifting still may be
Page 480 U. S. 241
permitted, because the jury can consider the defendant's
evidence when reaching its verdict.
I agree, of course, that States must have substantial leeway in
defining their criminal laws and administering their criminal
justice systems. But none of our precedents suggests that courts
must give complete deference to a State's judgment about whether a
shift in the burden of proof is consistent with the presumption of
innocence. In the past we have emphasized that, in some
circumstances, it may be necessary to look beyond the text of the
State's burden-shifting laws to satisfy ourselves that the
requirements of
Winship have been satisfied. In
Mullaney v. Wilbur, 421 U. S. 684,
421 U. S.
698-699 (1975), we explicitly noted the danger of
granting the State unchecked discretion to shift the burden as to
any element of proof in a criminal case. [
Footnote 4] The Court today fails to discuss or even
cite
Mullaney, despite our unanimous agreement in that
case that this danger would justify judicial intervention in some
cases. Even
Patterson, from which I dissented, recognized
that
"there are obviously constitutional limits beyond which the
States may not go [in labeling elements of a crime as an
affirmative defense]. [
Footnote
5]"
432 U.S. at
432 U. S. 210.
Today, however, the Court simply asserts that Ohio law properly
allocates the burdens, without giving any indication of where those
limits lie.
Because our precedent establishes that the burden of proof may
not be shifted when the elements of the defense and the elements of
the offense conflict, and because it seems clear
Page 480 U. S. 242
that they do so in this case, I would reverse the decision of
the Ohio Supreme Court.
II
Although I believe that this case is wrongly decided even under
the principles set forth in
Patterson, my differences with
the Court's approach are more fundamental. I continue to believe
that the better method for deciding when a State may shift the
burden of proof is outlined in the Court's opinion in
Mullaney and in my dissenting opinion in
Patterson. In
Mullaney, we emphasized that the
state's obligation to prove certain facts beyond a reasonable doubt
was not necessarily restricted to legislative distinctions between
offenses and affirmative defenses. The boundaries of the state's
authority in this respect were elaborated in the
Patterson
dissent, where I proposed a two-part inquiry:
"The Due Process Clause requires that the prosecutor bear the
burden of persuasion beyond a reasonable doubt only if the factor
at issue makes a substantial difference in punishment and stigma.
The requirement of course applies
a fortiori if the factor
makes the difference between guilt and innocence. . . . It also
must be shown that, in the Anglo-American legal tradition, the
factor in question historically has held that level of importance.
If either branch of the test is not met, then the legislature
retains its traditional authority over matters of proof."
432 U.S. at
432 U. S.
226-227 (footnotes omitted).
Cf. McMillan v.
Pennsylvania, 477 U. S. 79,
477 U. S. 103
(1986) (STEVENS, J., dissenting) ("[I]f a State provides that a
specific component of a prohibited transaction shall give rise both
to a special stigma and to a special punishment, that component
must be treated as a
fact necessary to constitute the crime'
within the meaning of our holding in In re
Winship").
There are at least two benefits to this approach. First, it
ensures that the critical facts necessary to sustain a conviction
will be proved by the state. Because the Court would
Page 480 U. S. 243
be willing to look beyond the text of a state statute,
legislatures would have no incentive to redefine essential elements
of an offense to make them part of an affirmative defense, thereby
shifting the burden of proof in a manner inconsistent with
Winship and
Mullaney. Second, it would leave the
States free in all other respects to recognize new factors that may
mitigate the degree of criminality or punishment, without requiring
that they also bear the burden of disproving these defenses.
See Patterson v. New York, 432 U.S. at
432 U. S.
229-230 (POWELL, J., dissenting) ("New ameliorative
affirmative defenses . . . generally remain undisturbed by the
holdings in
Winship and
Mullaney" (footnote
omitted)).
Under this analysis, it plainly is impermissible to require the
accused to prove self-defense. If petitioner could have carried her
burden, the result would have been decisively different as to both
guilt and punishment. There also is no dispute that self-defense
historically is one of the primary justifications for otherwise
unlawful conduct.
See, e.g., Beard v. United States,
158 U. S. 550,
158 U. S. 562
(1895). Thus, while I acknowledge that the two-part test may be
difficult to apply at times, it is hard to imagine a more clear-cut
application than the one presented here.
III
In its willingness to defer to the State's legislative
definitions of crimes and defenses, the Court apparently has failed
to recognize the practical effect of its decision. Martin alleged
that she was innocent because she acted in self-defense, a complete
justification under Ohio law.
See State v. Nolton, 19 Ohio
St.2d 133, 249 N.E.2d 797 (1969). Because she had the burden of
proof on this issue, the jury could have believed that it was just
as likely as not that Martin's conduct was justified, and yet still
have voted to convict. In other words, even though the jury may
have had a substantial doubt whether Martin committed a crime, she
was found guilty under Ohio law. I do not agree that the Court's
authority
Page 480 U. S. 244
to review state legislative choices is so limited that it
justifies increasing the risk of convicting a person who may not be
blameworthy.
See Patterson v. New York, supra, at
432 U. S.
201-202 (state definition of criminal law must yield
when it "
offends some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as
fundamental'" (quoting Speiser v. Randall, 357 U.
S. 513, 357 U. S. 523
(1958))). The complexity of the inquiry as to when a State may
shift the burden of proof should not lead the Court to fashion
simple rules of deference that could lead to such unjust
results.
[
Footnote 1]
Indeed, this type of instruction has an inherently illogical
aspect. It makes no sense to say that the prosecution has the
burden of proving an element beyond a reasonable doubt, and that
the defense has the burden of proving the contrary by a
preponderance of the evidence. If the jury finds that the
prosecutor has not met his burden, it of course will have no
occasion to consider the affirmative defense. And if the jury finds
that each element of the crime has been proved beyond a reasonable
doubt, it necessarily has decided that the defendant has not
disproved an element of the crime. In either situation, the
instructions on the affirmative defense are surplusage. Because a
reasonable jury will attempt to ascribe some significance to the
court's instructions, the likelihood that it will impermissibly
shift the burden is increased.
Of course, whether the jury will in fact improperly shift the
burden away from the state is uncertain. But it is
"settled law . . . that, when there exists a reasonable
possibility that the jury relied on an unconstitutional
understanding of the law in reaching a guilty verdict, that verdict
must be set aside."
Francis v. Franklin, 471 U. S. 307,
471 U. S. 323,
n. 8 (1985).
[
Footnote 2]
The accused also must have avoided the danger if possible, and
must not have been at fault in creating the threatening situation.
See State v. Robbins, 58 Ohio St.2d 74, 79-80, 388 N.E.2d
755, 758 (1979).
[
Footnote 3]
This risk could have been reduced -- although in my view, not
eliminated -- if the instructions had made it clear that evidence
of self-defense can create a reasonable doubt as to guilt,
even
if that same evidence did not rise to the level necessary to
prove an affirmative defense. But the instructions gave little
guidance in this respect. The trial court simply told the jury that
the prosecution must prove the elements of the crime, and the
defendant must prove the existence of the defense. The instructions
gave no indication how the jury should evaluate evidence that
affected an element of both the crime and the defense.
Cf.
Francis v. Franklin, supra, at
471 U. S. 322
("Nothing in these specific sentences or in the [jury] charge as a
whole makes clear . . . that one of these contradictory
instructions carries more weight than the other").
[
Footnote 4]
We noted, for example:
"[I]f
Winship were limited to those facts that
constitute a crime as defined by state law, a State could undermine
many of the interests that decision sought to protect without
effecting any substantive change in its law. It would only be
necessary to redefine the elements that constitute different
crimes, characterizing them as factors that bear solely on the
extent of punishment."
421 U.S. at
421 U. S.
698.
[
Footnote 5]
See also McMillan v. Pennsylvania, 477 U. S.
79,
477 U. S. 86
(1986) ("[I]n certain limited circumstances,
Winship's
reasonable doubt requirement applies to facts not formally
identified as elements of the offense charged").