# Affirmative Defences (Criminal): Burden of going forward, or burden of persuasion? **URL:** \ **Category:** Factual Questions\ **Created:** [March 29, 2006, 4:45am UTC](https://boards.straightdope.com/t/affirmative-defences-criminal-burden-of-going-forward-or-burden-of-persuasion/350363 "2006-03-29T04:45:44Z")\ **Posts on this page:** 7\ **Page:** 1
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [March 29, 2006, 4:45am UTC](https://boards.straightdope.com/t/affirmative-defences-criminal-burden-of-going-forward-or-burden-of-persuasion/350363/1 "2006-03-29T04:45:44Z")
In the U.S., how are affirmative defences handled in the criminal system? Does the accused have a burden of persuasion, or simply a burden of going forward? What are the due process implications? Thanks. ---
**Author:** ![ENugent](https://avatars.discourse-cdn.com/v4/letter/e/4af34b/32.png) [@ENugent](https://boards.straightdope.com/u/ENugent)\ **Post date:** [March 29, 2006, 5:59am UTC](https://boards.straightdope.com/t/affirmative-defences-criminal-burden-of-going-forward-or-burden-of-persuasion/350363/2 "2006-03-29T05:59:35Z")
I don’t practice criminal law, but my vague memory from the bar exam is that the defendant must make a _prima facie_ showing that a defense applies, and then the state bears the burden of persuasion. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [March 30, 2006, 10:02pm UTC](https://boards.straightdope.com/t/affirmative-defences-criminal-burden-of-going-forward-or-burden-of-persuasion/350363/3 "2006-03-30T22:02:08Z")
Is that for all defences, or just the negative ones? I’ve heard that in some jursidictions, the onus in affirmative defences is on the accused. My Black’s gives “insanity, intoxication, self-defense, automatism, coercion, alibi and duress” as examples of affirmative defences. So my question is whether the principle you’ve cited (defence needs only to make a prima facie case) applies to these defences as well, or if there is actually an onus on the accused to prove them, because they are defences which are in the peculiar knowledge of the accused? ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [March 30, 2006, 10:36pm UTC](https://boards.straightdope.com/t/affirmative-defences-criminal-burden-of-going-forward-or-burden-of-persuasion/350363/4 "2006-03-30T22:36:15Z")
In Texas, there are defenses and affirmative defenses. If evidence of a defense has been admitted, it is placed in the jury instruction, and the state is required to disprove the defense beyond a reasonable doubt. If the jury has a reasonable doubt regarding the defense, it must acquit the defendant. Self defense, for example, is a defense. If evidence has been admitted regarding self defense in an assault case, the prosecution must disprove that the defendant was reasonably defending himself beyond a reasonable doubt. With an affirmative defense, however, the burden shifts. If an affirmative defense is raised, the defendant must prove it to the jury by a preponderance of the evidence. Insanity is an example of an affirmative defense. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 31, 2006, 12:59am UTC](https://boards.straightdope.com/t/affirmative-defences-criminal-burden-of-going-forward-or-burden-of-persuasion/350363/5 "2006-03-31T00:59:05Z")
**pravnik** ’s post accurately describes the situation in Virginia as well. It’s worth mentioning, as I just did in another thread, that _entrapment_ can give rise to both sides of this coin. Entrapment is an affirmative defense; the defense must prove it by preponderance of the evidence. But if the defense does show that government actually induced the accused to commit the crime, the burden then shifts to the government to show, beyond a reasonable doubt, that the accused was predisposed to commit the crime. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [March 31, 2006, 3:01am UTC](https://boards.straightdope.com/t/affirmative-defences-criminal-burden-of-going-forward-or-burden-of-persuasion/350363/6 "2006-03-31T03:01:00Z")
Apparently Arizona has a different rule: > [@](#): > > Except as otherwise provided by law, a defendant shall prove any affirmative defense raised by a preponderance of the evidence, including any justification defense under chapter 4 of this title. [http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/13/00205.htm&Title=13&DocType=ARS](http://www.azleg.state.az.us/FormatDocument.asp?inDoc=/ars/13/00205.htm&Title=13&DocType=ARS) So does Connecticut: [http://www.jud.state.ct.us/CriminalJury/2-30.html](http://www.jud.state.ct.us/CriminalJury/2-30.html) Georgia too: [http://www.lawskills.com/case/ga/id/57819/](http://www.lawskills.com/case/ga/id/57819/) With respect to due process, the Supreme Court has held that the prosecution only needs to prove the elements of a crime beyond a reasonable doubt. Legislatures are pretty much free to define crimes as they want, and to establish affirmative defenses. Defendants can be required to prove their affirmative defenses. The only limit is that they can’t be required to disprove defined elements of the crime. [http://caselaw.lp.findlaw.com/data/constitution/amendment14/16.html#t82](http://caselaw.lp.findlaw.com/data/constitution/amendment14/16.html#t82) ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [March 31, 2006, 11:35am UTC](https://boards.straightdope.com/t/affirmative-defences-criminal-burden-of-going-forward-or-burden-of-persuasion/350363/7 "2006-03-31T11:35:37Z")
Interesting. The Supreme Court of Canada has gone the other way, and held that placing a burden of persuasion on the accused infringes the presumption of evidence, regardless whether the point in issue is an element of the offence or a defence: [R. v. Whyte, [1988] 2 S.C.R. 3](http://www.lexum.umontreal.ca/csc-scc/en/pub/1988/vol2/html/1988scr2_0003.html): > [@](#): > > The short answer to this argument is that the distinction between elements of the offence and other aspects of the charge is irrelevant to the s. 11(d) inquiry [i.e. - presumption of innocence]. The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence. > > The exact characterization of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused. The trial of an accused in a criminal matter cannot be divided neatly into stages, with the onus of proof on the accused at an intermediate stage and the ultimate onus on the Crown. Section 237(1)(a) requires the accused to prove lack of intent on a balance of probabilities. If an accused does not meet this requirement the trier of fact is required by law to accept that the accused had care or control and to convict. But of course it does not follow that the trier of fact is convinced beyond a reasonable doubt that the accused had care or control of the vehicle. Indeed, in this case, as in Appleby, the trier of fact stated that he convicted the accused despite the existence of a reasonable doubt as to care or control, an element of the offence.