CONSTITUTIONALITY OF AFFIRMATIVE DEFENSES TO CRIMINAL CHARGES

• NCJ Number: 34701
• Journal: Arkansas Law Review Volume: 29 Issue: 4 Dated: (WINTER 1976) Pages: 429-479
• Author(s): E M OSENBAUGH
• Date Published: 1976
• Length: 51 pages
• Corporate Author: University of Arkansas
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

EXAMINATION OF THE EXTENT TO WHICH DUE PROCESS PRECLUDES THE STATES FROM IMPOSING UPON A DEFENDANT THE BURDEN OF PERSUASION ON AN ISSUE WHICH AFFECTS GUILT OR THE DEGREE OF PUNISHMENT TO BE IMPOSED.

Abstract

THE INTERESTS AFFECTED BY A TRANSFER IN THE BURDEN OF PROOF ARE ANALYZED AS ARE THE DEVELOPMENT OF THE COMPARATIVE CONVENIENCE TEST IN MORRISON V CALIFORNIA (1934) AND THE ELEMENTS TEST. IN RE WINSHIP (1970) AND MULLANEY V WILBUR (1970) ARE ALSO EXAMINED TO DETERMINE THEIR IMPACT ON THE VARIOUS TYPES OF AFFIRMATIVE DEFENSES. IT IS FURTHER ARGUED THAT DUE PROCESS REQUIRES THAT THE STATE PROVE ALL ISSUES RELEVANT TO GUILT. THE ALTERNATIVE THAT THERE MUST BE A STRONG RATIONAL CONNECTION BETWEEN THE STATE'S CASE AND THE AFFIRMATIVE DEFENSE IS ALSO CONSIDERED. THE POSSIBLE EFFECT IF THE COURTS FIND AN AFFIRMATIVE DEFENSE UNCONSTITUTIONAL IS DISCUSSED.