When a defense does (or does not) negate an element of the crime

This wikilog article is a draft, it was not published yet.

by: Ryan • January 14, 2013 • no comments

Here's a summary of a SCOTUS opinion that puts forward pretty simple and straight forward principles regarding the allocation of the burden of proving or disproving a defense.

Key quote:

In an opinion written by Justice Scalia, the Court acknowledged that the government cannot shift the burden to the defendant :when a so-called affirmative defense negates an element of the crime. However, the Court determined that the withdrawal defense to conspiracy liability does not negate an element of the crime, and that Congress is therefore free to label it an affirmative defense that the defendant must prove. Smith thus takes its place in a long line of post-Mullaney cases in which the Court had approved of state and federal laws giving the defendant the onus to prove defenses such as extreme emotional disturbance, self-defense, insanity, and duress. With respect to each of these, the evidence to prove the defense does not negate the elements of the crime; rather, the defense and the crime can co-exist.

Note that in Oregon, the burden is on the state to disprove self-defense.