CRIMINAL LAW TF SESSION: Monday, 03.20.2022 COURSE ROADMAP: Theory Statutory Interpretation Argument Structure Principles of Legality Formalism & Realism Criminal Law Theory Punishment Criminalizati on Offenses Generally Actus Reus Voluntariness Omission s Mens Rea General Issues Strict Liability Mistak e Causation Burden of Proof Prosecution's Burden of Proof Defenses Generally Defendant's Burden of Proof Justifications o Self-Defense o Necessity SUBSTANTIVE REVIEW: Burden of Proof burden of proof refers to which side of the "v" must prove the elements asserted standard of proof refers to the standard by which each element must be proved for prosecution always "beyond a reasonable doubt" o In re Winship standard for each element of the offense for defense depends on the jurisdiction o "preponderance of the evidence" or o "clear and convincing evidence" Prosecution's Burden of Proof In re Winship must prove each element of the offense Owens v. State - circumstantial evidence of driving while intoxicated Defendant's Burden of Proof applies only for affirmative defenses standard of proof depends on the jurisdiction Affirmative Defenses depending on the jurisdiction: o burden of proof is fully on the defendant; or standard = clear and convincing evidence (around 70% certainty); or preponderance of the evidence (around 50% certainty) 1
[this is Maine's approach 17-A M.R.S. § 101(2)] 2
o burden of proof is divided into: burden of production on the defendant must show "some evidence" burden of persuasion prosecution must prove the negative of the affirmative defense (on rebuttal) standard = beyond a reasonable doubt "burden shifting" an important constitutional principle o Mullaney v. Wilbur (1975) where an affirmative defense is included within the statutory language of the offense, it is unconstitutional to shift the burden to the defendant context: the defense of "heat of passion on sudden provocation" was contemplated by the statutory language o Patterson v. New York (1977) where an affirmative defense is not an element of the offense charged, it is permissible to shift the burden to the defendant context: malice aforethought was not an element of second-degree murder Justifications rationale: although we generally don't want people to commit this offense, society would condone defendant's conduct under these particular circumstances o justification extends to accomplices Self-Defense: there is an actual or apparent threat; the threat is unlawful; the threat is immediate; the defendant must believe that: o they are in imminent peril of death or serious bodily harm; and o force was the only way to prevent the death or serious bodily harm potential negative defenses to this affirmative defense: precipitation/provocation exception o prevents an aggressor from being able to avail themselves of the defense o negates the last element of self-defense duty to withdraw/retreat o arises only where there is an opportunity to retreat safely o negates the last element of self-defense o counterargument the castle doctrine there is no duty to retreat in one's own home United States v. Peterson - windshield wiper case court did not reach the issue of the castle doctrine because the defendant was the aggressor, and therefore self- defense was not proven evaluating self-defense: objective vs. subjective perspective courts must apply the objective standard: o defendant's belief must be objectively reasonable People v. Goetz - subway vigilante statute governing the use of force in self-defense required the defendant to "reasonably believe" that (1) the threat was imminent; and (2) use of force was necessary
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