[B]UNDERSTANDING AFFIRMATIVE DEFENSES[/B][SIZE=1]
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[/SIZE][B]D. Burdens[/B]
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.
[INDENT]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).[/INDENT][SIZE=1]
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[url=http://avenue-s.us/resources/beneman_affirmative_defenses_materials.pdf]UNDERSTANDING AFFIRMATIVE DEFENSES[/url][/SIZE]
