I. Legal Groundwork For Affirmative Defenses
A. What is an Affirmative Defense?
An affirmative defense is one which provides a defense without negating an essential element of the crime charge. To establish an affirmative defense the defendant must place before the jury sufficient proof to generate a jury instruction on the particular defense theory sought. Normally, an affirmative defense is expressly designated as affirmative by statute, or is a defense involving an excuse or justification peculiarly within the knowledge of the accused.
B. How is an Affirmative Defense different from a “Regular” Defense?
The presumption of innocence is legally all a defendant needs to be acquitted. The defense is reasonably free to argue the Government has failed to prove any essential element of the crime charge reasonable doubt (BRD) and jury may find a defendant not guilty. This tact does not require the defense to produce any evidence. The judge must instruct the jury on the government’s burden, presumption of innocence, unanimity and proof beyond a reasonable doubt. A defendant is entitled to a theory of defense instruction “as long as it is legally valid and there is sufficient evidence, viewed in the light most favorable to the defendant, to permit a reasonable juror to credit the defendant’s theory.” *United States v. Josleyn, *99 F.3d 1182, 1194 (1st Cir. 1996); *United States v. Meade, *110 F.3d 190, 201 (1st Cir. 1997); U.S. v. Reed, 991 F.2d 399, 400 (7th Cir. 1993).
An affirmative defense is one which requires the actual production of evidence, be it testimonial or physical. The evidence can be adduced through cross examination of
Government witnesses or produced after the close of the Government’s case in chief.
Affirmative defenses do not directly attack an element of the crime but provide either justification for the conduct or some other legally recognized approach to undermining the charge. A defendant must generate an affirmative defense instruction.
C. Types of Defenses
There are two categories of defense.
- I did not do it defenses, and
- I did it but defenses.
Affirmative defenses are available in both categories.
i. I Did Not Do It
An alibi defense is an “I did not do it defense.” We could rest there, but with the addition of an alibi we go farther, we show we were elsewhere so **could not **have done it. The defense has affirmatively chosen to take on the burden of proving the defendant was elsewhere when the crime occurred. If we produce this evidence, then we are entitled to a special or additional jury instruction. “One of the issues in this case is whether the defendant was present at the time and place of the alleged crime. If, after considering all the evidence, you have a reasonable doubt that the defendant was present, then you must find the defendant not guilty.” Notice how the instruction focuses the jury. If they have a reasonable doubt on the defendant’s presence, they MUST find not guilty. If, however they find presence, the jury still must go on to look at each and every element of the offense. With an “I did not do it” affirmative defense, you concede nothing and you strengthen your not guilty position by giving the jury a specific reason.
ii. I Did It But
Many more affirmative defenses fall into the “I did it but” category. Insanity, entrapment, self defense, necessity, duress, are many of the statutory affirmative defenses. In these situations, there is a major strategic aspect to deciding on the defense. Assertion of the specific affirmative defense essentially concedes that the defendant was involved in the conduct alleged. While the government must still prove each element assertion of many affirmative defenses tells the jury the government is in fact correct as too much of the charge, BUT, there is a fact or facts which serve to exonerate the conduct. Self defense is an affirmative defense to assault, but by asserting self defense the defendant admits to the assault then gives a legal reason why guilt does not attach to the conduct. If the jury rejects the self defense argument, they are supposed to still find proof BRD of all the elements.
Once you have put on your self defense claim, do you think a jury will spend much time on deciding if assaultive conduct actually occurred? I don’t think so. In an I did it but case, the defense is generally hanging the whole case on the jury accepting the affirmative defense presented. Sure there are exceptions to every rule but realistically how may jurors will accept arguments in the alternative. I did not assault her, but if I did it was in self defense. I don’t think that works with a jury. Maybe in a bench trial but even federal judges are human. In deciding to present an I did it but affirmative defense review these issues with the client. I suggest you have a letter explaining the issues to them.
D. Burdens
The term “affirmative defense” seems inextricably tied to arguments about burden shifting. Three different burdens exist; burden of proof (always on the government), burden of production (normally on the defense), and burden of persuasion (normally back on the government). The burden of proof to prove the essential elements of the crime charged BRD starts with and ALWAYS stays with the Government. The burden of production to generate an affirmative defense is on the defense. This is constitutional because the defense is not negating an essential element of the crime charged. The standard, meaning the quantum of evidence needed, varies with the particular affirmative defense. Generally it is either by a preponderance, or by clear and convincing. Once the defense has met this burden of producing an affirmative defense, the Government has the additional burden of persuading the jury not just as to each element of the crime BRD, but also to persuade the jury to reject the affirmative defense BRD as well.
I. Burden of Proof
Presenting an affirmative defense offers no relief to the government in what they must prove. Patterson v. New York, 432 U.S. 197 (1977). Rather, if the defense generates an affirmative defense, the government must then disprove the defense generally beyond a reasonable doubt. Mullaney, 421 U.S. at 704; U.S. v. Jackson, 569 F.2d 1003, 1008 n.12 (7th Cir. 1978)(emphasis added). Affirmative defenses are the result of the common law merging with statutes and the modern rules of criminal procedure. At common law, the burden of defenses was generally on the defendant. This remained the case at the time the bill of rights was adopted. Fifth and fourteenth amendment jurisprudence have changed common law. It is now “black letter law” that the government has the burden to prove each and every element of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979); In re Winship, 397 U.S. 358, 364 (1970); Davis v. U.S., 160 U.S. 469 (1895). This burden never shifts to the defendant who maintains a presumption of innocence throughout the trial. Wilbur v. Mullaney, 496 F.2d 1303, 1307 (1st Cir. 1974), affirmed, 421 U.S. 684 (1975). Generally, if a crime is a specific intent crime, then the government must prove beyond a reasonable doubt that the defendant acted with an improper purpose. An affirmative defense which undermines intent provides a complete defense by undermining an essential element of the charge by the government beyond a reasonable doubt. *In re Winship *397 U.S. 358 (1970). It is an unconstitutional shift of the burden if a defendant must prove his innocence by negating an element of the statute. Mullaney v. Wilbur, 421 U.S. 684, 702 (1975).
There remains a distinction between the burden of pleading and burden of proof. If a defense is labeled an “Affirmative Defense” then the government need not plead it, as it is not an element of the offense. It has long been established that “the burden of proof is never upon the accused to establish his innocense, or to disprove the facts necessary to establish the crime for which he is indicted. It is on the prosecution from the beginning to the end of the trial, and applies to every element necessary to constitute the crime.” Davis v. United States, 160 U.S. 469, 487 (1895). The defendant does have the option, under some circumstances, to introduce evidence to show “affirmatively that he was not criminally responsible for his acts.” *Davis *at 478.
ii. Burden of Production
The level of evidence required to generate an affirmative defense, often called the “burden of production” varies with the defense. For some defenses it is by a “preponderance,” (entrapment, Jacobson v. U.S., 112 S.Ct. 1535 (1992) while other defenses require “clear and convincing evidence” (normally a statutory requirement, such as insanity, 18 U.S.C. § 17(b)). The First Circuit has suggested, although not made a definitive finding, that the court needs to examine both the particular crime and the particular defense at issue in assigning the burden of proof. The court indicates there may be a difference in those cases which require a *mens rea *when compared to those that are general intent. U.S. v. Diaz, 285 F.3d 92, 96-97 (1st Cir. 2002).
iii. Statutes may set burden of production
The legislature may establish the specific elements of a crime and may also, if it chooses, create specific affirmative defenses. As to those established affirmative defenses the legislature may by statute require a criminal defendant to bear the burden of establishing that defense. Martin v. Ohio, 480 U.S. 228, 233, 94 L. Ed. 2d 267, 107 S. Ct. 1098 (1987); *Patterson, *432 U.S. at 210. The Supreme Court has upheld legislative creation of the burden of production against constitutional challenges, reasoning that the federal Constitution requires that the government bear the burden only as to the elements of the charged crime and that the legislature’s definition of the elements of a criminal offense usually is dispositive. Martin, 480 U.S. at 232-33; McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986). As one court observed, “Congress, however, routinely creates exceptions to criminal liability for various offenses. Most of these exceptions do not contain language indicating that they are affirmative defenses rather than elements of the offense. Nevertheless, the courts generally interpret them as affirmative defenses.” United States v. Kloess, 251 F.3d 941, 945 (11th Cir. 2001), (finding the safe harbor of 18 U.S.C. § 1515 (c), and affirmative defense to an obstruction charge.)
1 For an excellent analysis of the major affirmative defenses see Defending A Federal Criminal Case, 2001 Ed., Federal Defenders of San Diego, Chapter 11, Affirmative Defenses in Federal Court, updated by Tony Cheng and Suzanne Lachelier. Credit is given to them for much of this section of my article. A second excellent source on affirmative defenses is the Pike and Fischer BNA Criminal Practice Manual, Vol. 2, section 61, Defenses. Both sources provide extensive bibliographies to assist in focusing on a specific defense.
iv. Burden of Persuasion
At common law, the defendant bore the burden of pleading and proving all affirmative defenses. This allocation of the burden was found constitutional in Patterson v. New York, 432 U.S. 197, 202 (1997). The *Patterson *court recognized the trend toward requiring the government to bear the burden of persuasion on some affirmative defenses. Patterson, note 10. Any defense which tends to negate an element of the crime charged, sufficiently raised by the defendant, must be disproved by the government. Patterson, 206-207 (emphasis added). “The due process clause requires that the prosecutor bear the burden of persuasion beyond a reasonable doubt only if the defense makes a substantial difference in punishment and stigma. The requirement of course applies *a fortiori *if the defense makes the difference between guilt and innocence.” *Patterson *at 226.
If the defendant introduces evidence that has the effect of negating any element of the offense, the government must disprove that defense beyond a reasonable doubt. “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.” Martin v.Ohio, 480 U.S. 228 at 233(emphasis added).