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If the state chooses to recognize a factor that mitigates the degree of criminality or punishment, it may assure itself that the factor has been established with reasonable certainty and that recognition of mitigating circumstances does not require the state to prove beyond a reasonable doubt their nonexistence. The due process clause does not put the state to the choice of abandoning those defenses or undertaking to disprove their existence in order to convict of a crime which otherwise is within its constitutional powers to sanction by substantial punishment. There is no constitutional imperative, operative countrywide, that a state must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused. The due process clause requires the prosecution to prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged. Proof of the non-existence of all affirmative defenses is not constitutionally required.
Defendant Mark Moes committed a murder for hire. Claiming coercion as a defense under Wis. Stat. § 939.46(1), he contended that his employer in the scheme had told him that he would be killed if he did not complete the job. Defendant was convicted of first-degree murder, and was sentenced to life imprisonment. On appeal, the defendant argued that the jury instruction erroneously allocated the burden of proof, thereby constituting fundamental error affecting his substantial rights.
Under the circumstances, could defendant be convicted for first-degree murder, notwithstanding his defense of coercion?
The Court affirmed the conviction, observing that although the federal due process clause did not require the state to disprove beyond reasonable doubt the statutory defense of coercion, that burden was imposed upon the state as a matter of Wisconsin law. Considering the instructions in their entirety, the Court found the jury was properly instructed that it could find defendant guilty of first-degree murder only if it determined beyond reasonable doubt that he had not been coerced and was guilty of the crime.