by Thomas Lundy

A. Overview

    When the defendant has the burden of proof as to an affirmative defense, there will be situations in which the defendant has not met that burden yet still produced evidence relating to essential elements of the charge (such as the required mental state). In such a case there is a danger that the jury may assume that if it finds the defendant failed to prove the affirmative defense, then it need not consider the evidence offered in support of the defense when deciding whether the prosecution has met its burden. Therefore, special instruction may be appropriate to prevent the affirmative defense from forcing the defense into an unwanted all-or-nothing situation.

    Martin v. Ohio (1987) 480 US 228 [107 SCt 1098; 94 LEd2d 267] held that the state may constitutionally shift the burden to the defendant to prove an affirmative defense such as self defense. In so holding the court emphasized that the instructions must "convey to the jury that all the evidence, including the evidence going to self defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the State’s proof of the elements of the crime." (Id. at 234; see also generally, Humanik v. Beyer (3d Cir. 1989) 871 F2d 432, 440-42; Flores v. Minnesota (8th Cir. 1990) 906 F2d 1300, 1303.)

    In response to Martin’s recognition of potential juror confusion in this area, it has been suggested that clarifying instructions should be given to assure jury understanding of these important principles. (See e.g., MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 3-115(a) (State Bar of Montana, 1990) [jury instructed that "even if you determine the use of force was not justified, the state still has the duty to prove each of the elements of the crime charged beyond a reasonable doubt"]; CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.61 [Consent Defense to Sexual Abuse] ¶ 1, sent. 3 (Bar Association of the District of Columbia, 4th ed. 1993) [jury told to consider evidence of consent the affirmative defense of deciding whether prosecution proved the force or threat element].)

    The First Circuit commentary to its standard insanity instruction (1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 5.08 [Insanity 18 USC 17], fn 3 (2002)) further illustrates the problem:

    A more troublesome issue arises when the defendant raises both the insanity defense and a mens rea defense based on abnormal mental condition. If evidence tends to show that a defendant failed to understand the nature and quality of his/her conduct, that evidence will not only tend to help prove an insanity defense but it will also typically tend to raise reasonable doubt about the requisite culpable state of mind. (See 1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 5.02 [Mental State That Is Inconsistent With The Requisite Culpable State Of Mind] (2002).) In Martin v. Ohio (1987) 480 US 228, 234 [107 SCt 1098; 94 LEd2d 267], the Supreme Court held that the trial judge must adequately convey to the jury that evidence supporting an affirmative defense may also be considered, where relevant, to raise reasonable doubt as to the requisite state of mind. This overlap problem may be solved by adequate instructions. (Id.)

    The need for clarifying instructions is particularly acute in circumstances where the affirmative defense would also serve to negate an element of the charge. For example, in jurisdictions where consent is an affirmative defense to rape, "because evidence relating to consent is relevant to the question of force, a failure to instruct the jury in that regard, where requested, does violate due process." (Russell v. United States (DC 1997) 698 A2d 1007, 1008.)

    Moreover, the standard elements instruction does not suffice. As one court observed:

    In this kind of situation, the constitutional problem is not eliminated by including an instruction in the charge that the state has the ultimate burden of proving every element of the offense beyond a reasonable doubt. When such a standard instruction is coupled with one placing a burden on the defendant to prove his defense by a preponderance of the evidence, the predictable result is more than merely confusion. In order to attribute some significance to the defendants’ burden, a rational juror’s only option is to conclude that the defendants’ evidence concerning the subject matter of the ‘affirmative defense’ is to be considered only if the jury finds it persuasive, i.e., finds that the facts sought to be proved are more likely true than not true. It is clear from Martin that this is constitutionally impermissible.

(Emphasis added.) (Humanik, 871 F2d at 441.)

    Hence, in any situation where the burden of proving an affirmative defense is on the defendant, there may be a need for an instruction informing the jury that the defendant has the burden of proving the affirmative defense, but if the defense is not proven, the evidence relating to that defense should be considered on the question of whether the prosecution met its burden of proving the underlying elements of the charge.

    For example, where a defense of insanity is raised, the jury is typically instructed that the defendant has the burden of proving this defense. (See e.g., 5th Circuit Pattern Jury Instructions - Criminal (2001) 1.34; 9th Circuit Pattern Jury Instructions - Criminal (2003) 6.4; 11th Circuit Pattern Jury Instructions - Criminal (2003) SI 15.); UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1121 [Affirmative Defense-Mental Disease Or Defect-Guilty Except For Insanity] (Oregon State Bar, 1998 ); CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 4.00 [The Defense Of Insanity] (West, 6th Ed. 1996).) If the evidence presented by the defendant fails to meet the burden of proving insanity, the jury must, nevertheless, consider this same mental evidence on the question of whether the prosecution has proven beyond a reasonable doubt that the defendant harbored the requisite intent or mens rea for the offense. (See also Robinson, Criminal Law Defenses (West, 1984) (1999 Pocket Part) § 4(a) fn. 22 [burden shifting instruction "may well foreclose consideration or meaningful consideration of defense evidence relevant to negate the State’s case on an element of the offense"].) Accordingly, the basic elements instruction does not justify "a refusal to instruct the jury that evidence relevant to a special theory of defense may be considered in determining whether the state has met its burden of persuasion on the element." (Ibid.; see also Humanik, 871 F2d at 440-42 [if prosecution places burden as to affirmative defense on defendant, instructions must make it clear that the jury can consider the defendant’s evidence as it relates to the elements of the crime as to which the prosecution has the burden of proof beyond a reasonable doubt].)

    Another alternative would be to require the jury to decide whether the elements of the charge have been proven before considering the defense. For example, ". . . many statutes defining rape or sexual abuse include force as an element that the prosecution must prove beyond a reasonable doubt. Evidence that is relevant on the issue of consent may also be relevant on the question of force. A concern that has been raised is how to instruct the jury to consider such evidence without improperly shifting the prosecutor’s burden of proving each of the elements beyond a reasonable doubt. One way this tension has been resolved is to instruct the jury that it must first decide whether the prosecution has proved each of the elements, including force, beyond a reasonable doubt and it may consider evidence relevant to consent in evaluating whether the prosecution has met its burden of proof. Only after concluding that the prosecution has met its burden, should the jury then decide whether the evidence has proven consent by a preponderance of the evidence. [Footnotes omitted.]" (Wharton’s Criminal Evidence (West, 14th ed. 1986) § 2:20, p. 119.)

STRATEGY NOTE: Depending on the case, the instructions on this point may be undesirable as a matter of strategy because they may be viewed as suggesting to the jury a weakness in the defendant’s affirmative defense evidence. Alternatively, the jury could simply be instructed in the language of Sample Instruction # 4, below.

    Even if you conclude that the defendant did not prove _____ (insert affirmative defense; e.g., necessity, consent, etc.) consider any evidence of consent in deciding whether the government has proved beyond a reasonable doubt that the defendant ______ (insert disputed element of the charge; e.g., acted with criminal intent, used force, etc.).

[Cf.,CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.61 [Consent Defense To Sexual Abuse] ¶ 1, sent. 3 (Bar Association of the District of Columbia, 4th ed. 1993).]

    The defendant is relying on ______________ (describe the defense claimed) as a theory of the defense. Even if you find that this defense was not proven, consider any evidence in support of this defense in deciding whether the prosecution has met its burden of proving every element of the charge. Even if a defendant’s affirmative defense is rejected, [this does not relieve the prosecution of its burden to prove every element of the charged offense] [the prosecution’s burden does not shift to the defendant].

[See generally State v. Wilson (KS 1987) 731 P2d 306, 309 [error to delete from this instruction the sentence, "The state’s burden of proof does not shift to the defendant"]; cf. PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 52.08 [Evidence And Guides For Its Consideration -Affirmative Defenses-Burden Of Proof] (Kansas Judicial Council, 3rd ed. 1999).]

    (insert affirmative defense), the prosecution must still prove every element of the charge beyond a reasonable doubt.