§2.01   Jury Trials

     

[A]  Right to Trial by Jury – The right to a jury trial only applies to "non-petty" offenses, generally deemed to be offenses punishable by imprisonment for more than six months. [Baldwin v. New York, 399 U.S. 66, 69 (1970)] Offenses for which the maximum term of imprisonment authorized by law is six months or less may also be deemed "non-petty" if additional available statutory penalties (including fines) "are so severe that they clearly reflect a legislative determination that the offense in question is a ‘serious’ one." [Blanton v. City of North Las Vegas, 489 U.S. 538, 543 (1989)]

 

[B]  Required Number of Jurors – Although a jury composed of as few as six persons is constitutional [Williams v. Florida, 399 U.S. 78 (1970)], the current requirement in federal criminal trials is that a jury must be composed of twelve persons [Fed. R. Crim. P. 23(a)] Many states likewise require a 12-person jury in criminal trials.

 

[C]  Number of Jurors Needed to Acquit or Convict – State laws permitting non-unanimous verdicts are permissible, as long as the vote to convict represents a "substantial majority" of the jurors [Johnson v. Louisiana, 406 U.S. 356 (1972)], but in federal criminal trials, a verdict to convict or acquit must be unanimous. [Fed. R. Crim. P. 31(a)]

 

[D]  Jury Nullification – A jury has the power to return a verdict of acquittal even though the jury believes that the defendant is legally guilty of an offense. This might occur if the jury believes that the criminal statute is immoral or unjust, that the defendant has been "punished enough" already, or that the police or prosecutors misbehaved in some manner.

 

§ 2.02   Burdens of Proof

 

The fact-finding process imposes two types of burdens of proof: (1) the burden of production (sometimes called the "burden of going forward (with evidence)";) and (2) the burden of persuasion.

 

[A]   Burden of Production

 

[1]  Prosecution Burden of Production – Prior to trial the prosecution must file a document with the court that indicates the crime or crimes it believes that the defendant has committed. This document provides the accused with notice of the essential elements of the offense(s) charged, and the basic facts that the prosecutor intends to prove at trial to support his allegation that the defendant committed the crime(s). The prosecutor must produce enough evidence that a rational trier-of-fact may fairly determine that the elements of the crime have been proved beyond a reasonable doubt.

 

If the judge concludes that the prosecutor failed to satisfy the burden of production regarding any element of the offense charged, the defendant is entitled to a directed verdict of acquittal at the conclusion of the prosecutor’s case-in-chief or at the end of the trial. If the prosecutor failed to introduce enough evidence to support a jury finding beyond a reasonable doubt that the defendant committed the crime, there is no reason for it to deliberate on the matter.

 

[2]  Defendant’s Burden of Production – The defendant is sometimes required to provide advance notice to the prosecution of defenses he intends to assert at trial. The amount of evidence required to satisfy the burden of production on affirmative defenses varies by jurisdictions.  In some jurisdictions the defendant meets his burden of production (and, thus, is entitled to an instruction to the jury on the defense) if he produces more than a "scintilla of evidence" regarding an affirmative defense; in other jurisdictions the defendant must introduce enough evidence to raise a reasonable doubt on the issue of the defense claimed.

 

If the defendant fails to meet his burden of production regarding an affirmative defense, the judge will not instruct the jury on the law pertaining to the defense, and the defendant is not entitled to have the issue considered by the jury in its deliberations.

 

[B]  Burden of Persuasion – Once a party satisfies his burden of production pertaining to an issue, that matter is properly before the jury as fact-finder, i.e., it will decide whose factual claims are more persuasive.

 

[1]  Prosecution’s Burden of Persuasion (the Winship doctrine) – Pursuant to the due process clause, a person charged with a crime is presumed innocent and, to enforce this presumption, the Supreme Court held in In re Winship [397 U.S. 358 (1970)] that the prosecution must persuade the fact-finder beyond a reasonable doubt of "every fact necessary to constitute the crime charged." This rule has come to be known as "the Winship doctrine."

 

If the prosecution fails to meet its burden of persuasion, the defendant must be acquitted.  Procedurally, the acquittal may occur in either of two ways. First, after the prosecution completes its presentation of evidence or immediately before the case is due to be submitted to the jury, upon motion of the defendant, the trial court must direct a verdict of acquittal if the evidence, viewed in the manner most favorable to the prosecution, can support no reasonable verdict other than acquittal. Alternatively, if the judge believes that reasonable minds can differ and, therefore, permits the case to go to the jury, the jury must acquit if it possesses a reasonable doubt regarding one or more elements of the offense charged.

 

[2]  Defendant’s Burden of Persuasion – Jurisdictions differ in their allocation of the burden of persuasion regarding affirmative defenses. Some states require the prosecution to disprove beyond a reasonable doubt some or all defenses, once the defendant has met his burden of production. In states that allocate to the defendant the burden of persuasion regarding defenses, it is typical to require the defendant to prove the validity of the claimed defense by the less strict preponderance-of-the-evidence standard.

 

If a defendant presents sufficient evidence to meet his burden of production regarding a defense to the crime charged, the jury must be permitted to evaluate the defense claimed. When the defendant also has the burden of persuasion, a jury should reject the claimed defense if he fails to satisfy the stated burden.

 

If the prosecution has the burden of disproving a defense, the jury must acquit the defendant if the prosecution fails to persuade the jury beyond a reasonable doubt of the defense’s non-existence.

 

[3]  Determining if a Fact Relates to an Element or an Affirmative Defense – A prosecutor must prove every element of an offense beyond a reasonable doubt. The legislature may allocate to the defendant the burden of persuasion regarding "facts not formally identified as elements of the offense charged." [McMillan v. Pennsylvania, 477 U.S. 79, 86 (1986)]  Thus, generally speaking, a legislature may allocate to the defendant the burden of persuasion regarding facts that relate to an affirmative defense. However, a court interpretation of the statute may be required to determine whether a particular "fact" relates to an element of an offense or to an affirmative defense. [Compare Mullaney v. Wilbur and Patterson v. New York, below.]

 

In Mullaney v. Wilbur, 421 U.S. 684 (1975), the homicide statute under which the defendant was tried defined "unlawful" killing as "neither justifiable nor excusable."  At trial the defendant presented evidence supporting his claim that he killed the victim "in the heat of passion on sudden provocation." The trial judge instructed the jury that if the prosecution proved that the defendant killed the victim unlawfully and intentionally, then the killing was murder, but if the defendant persuaded the jury by a preponderance of the evidence that the killing was "in the heat of passion on sudden provocation," it constituted the lesser offense of manslaughter.  The Court found that the instruction violated the Winship doctrine, as it essentially shifted to the defendant the burden of disproving an element of the offense – that the homicide was not "unlawful" as defined in the statute.

 

In Patterson v. New York, 432 U.S. 197 (1977), the defendant raised an affirmative defense of "extreme emotional disturbance" as provided for in the New York homicide statute.  The jury was instructed that the defendant bore the burden of persuasion for such defense.  The Court upheld the resulting conviction.  In contrast to Mullaney – where the absence of heat of passion (or any other justification or excuse) was an element of murder – absence of "extreme emotional disturbance" was not an element of the New York murder statute.  Rather, existence of such a condition was an express affirmative defense to murder that mitigated the crime to manslaughter. As a non-element of murder, the state could properly place the burden of proving its existence on the defendant.

 

[4]  Model Penal Code – Except for defenses that the Code expressly requires the defendant to prove – with the standard of proof being a preponderance of the evidence – the prosecution must prove every "element" of an offense beyond a reasonable doubt, [MPC § 1.12(1)] including conduct that negates an excuse or justification for the action. [MPC § 1.13(9)(c)] That is, the Model Penal Code allocates to the prosecution the duty to disprove defenses, assuming that the defendant has satisfied his burden of production.

 

§ 2.03   Presumptions

 

[A]  Common Law Mandatory Presumptions – If a jury is instructed that it must presume Fact B upon proof of basic Fact A, the presumption is a "mandatory presumption."

 

[1]  Rebuttable Mandatory Presumptions – A mandatory rebuttable presumption requires a finding of the presumed fact upon proof of the basic fact, unless that finding is rebutted by the opposing party. The procedural effect of a mandatory rebuttable presumption is to shift to the defendant the burden of persuasion regarding the presumed fact, upon proof by the prosecution of the basic fact.  Rebuttable mandatory presumptions are unconstitutional when the presumed fact is an element of the crime charged. [Sandstrom v. Montana, 442 U.S. 510 (1979)].

 

[2]  Irrebuttable ("Conclusive") Presumptions – An irrebuttable or conclusive presumption requires the jury to find the presumed fact upon proof of the basic fact, even if the opposing party introduces rebutting evidence. (NB:  True irrebuttable presumptions are rare.)  A mandatory irrebuttable presumption pertaining to an element of an offense is unconstitutional for the same reasons that mandatory rebuttable ones are impermissible.

 

[B]  Common Law Permissive Presumptions ("Inferences") – A permissive presumption – or inference – is one in which the fact-finder may, but need not, find the existence of the presumed fact upon proof of the basic fact.  As such, it does not formally shift the burden of proof from one party to another, as a true mandatory presumption does.  While not unconstitutional per se, to be constitutionally permissible, there must be a rational connection between the basic fact and the presumed (inferred) fact; i.e., the presumed fact more likely than not flows from the basic fact.

 

[C]  Model Penal Code – The Model Penal Code [§ 1.12(5)(b)] does not recognize mandatory presumptions but permits permissive presumptions regarding elements of an offense.

 

§ 2.04   Sentencing

 

      [A]   Distinctions Among Sources of Law

 

[1]  State Law; Majority Approach – Consistent with rehabilitation, virtually every state by 1960 utilized some form of "indeterminate sentencing."  This system afforded judges considerable sentencing discretion, encouraged individualization of maximum sentences, and authorized correctional officers (primarily parole boards) to release a prisoner before completion of the sentence imposed by the judge, if the prisoner satisfied rehabilitative goals.  Today, most states have abandoned indeterminate sentencing systems for a determinate one, leaving no discretion to corrections officers to reduce sentences based on evidence of rehabilitation in prison.

 

[2]  Federal Law – Federal judges are now required to impose sentences in conformity with the Federal Sentencing Guidelines.  In brief, after following a series of steps, the judge arrives at a numerical range, within which he determines the specific sentence for a given convicted defendant.  These guidelines greatly reduce the discretion afforded judges in federal criminal trials.

 

[B]   Eighth Amendment Limits on Punishment

 

      [1]  General Principle – The Supreme Court has held that implicit in the Eighth Amendment’s prohibition against "cruel and unusual punishment" is that punishment not be grossly disproportional to the crime committed. [Weems v. United States, 217 U.S. 349, 367 (1910)]

 

      [2]  Death Penalty – The Supreme Court has stated that the death penalty "does not invariably violate the Constitution" [Gregg v. Georgia, 428 U.S. 153 (1976), addressing capital punishment imposed for murder convictions] but has ruled that death is grossly disproportional punishment for the crime of rape of an adult woman.  [Coker v. Georgia, 433 U.S. 584 (1977)]

 

      [3]  Terms of Imprisonment – The Court has apparently struggled with the issue of whether punishment can be disproportionate to the offense in non-capital cases.  Nevertheless, the following conclusions may be drawn:

 

 

[a] Rummel v. Estelle [445 U.S. 263 (1980)] – Rummel was convicted in Texas of the felony of obtaining by false pretenses a check for $120.75, and then cashing it. The offense carried a two-to-ten year prison term. However, Rummel had previously been convicted twice of theft (in which he fraudulently amassed property or cash valued at $108.36), and so he was sentenced as required under the state’s habitual offender law to life imprisonment. (Rummel was eligible for parole consideration after approximately twelve years in prison.)  The Supreme Court upheld Rummel’s sentence, rejecting the argument that his life sentence constituted grossly disproportional punishment because his three offenses were all petty nonviolent crimes.  The Court deferred to the Texas legislature’s decision to enact legislation aimed at reducing recidivism by imposing harsher prison sentences on repeat offenders. 

 

[b] Solem v. Helm [463 U.S. 277 (1983)]– The defendant Helm was sentenced to life imprisonment without possibility of parole pursuant to South Dakota’s habitual offender law, upon conviction of fraudulently passing a "no account" check for $100.00. It was his seventh conviction.  The Court invalidated Helm’s sentence, and in so doing, reaffirmed the applicability of the constitutional principle of proportionality in non-capital offenses.  The Court distinguished Rummel on the ground that Texas had a relatively liberal parole policy, whereas Helm’s life sentence was without possibility of parole.

 

[3] Harmelin v. Michigan [501 U.S. 957 (1991)] – Harmelin was convicted of possessing 672 grams of cocaine. Although this was his first offense, he received the statutory mandatory term of life imprisonment without possibility of parole. Because there was no death penalty in Michigan, this was the harshest penalty available for any offense in the state.  The Court held that Harmelin’s sentence did not violate the Eighth Amendment.