Standards of Proof for Affirmative Defenses

In In re Winship, the Supreme Court announced that in criminal cases, “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”

Its primary bases for this holding were the observations that a criminal defendant “has at stake an interest of transcending value”—namely, the stigmatization and loss of liberty that would result from a criminal conviction—and the central importance of the avoidance of false convictions to public confidence in applications of the criminal law.

The Court has never seriously considered abandoning the basic holding of Winship. But a variety of questions have arisen about the meaning of “every fact necessary to constitute the crime,” and in particular how to address affirmative defenses within the Winship framework.

The issue is that there is a long legal tradition of recognizing affirmative defenses which allow for a criminal defendant to assert some sort of justification, excuse, or other relevant legal consideration that, if proved, would mitigate or even fully undermine a criminal charge.

When the law provides for an affirmative defense, it is standard for it to place the burden of proving the affirmative defense on the defendant, rather than on the government, and typically to apply the “preponderance of the evidence” standard to the affirmative defense. The question, then, is whether that practice is ever consistent with Winship and, if so, what limits (if any) Winship imposes on the formulation and adjudication of affirmative defenses.

About the Law, Philosophy, and Social Theory Colloquium

The Law, Philosophy and Social Theory Colloquium is jointly presented by the University of Michigan Philosophy Department and the School of Law. The public sessions feature presentations by leading or emerging voices in the fields of legal theory, moral or political philosophy to faculty members from the philosophy department, the law school, the history department, the Ross School of Business and the African-American Studies department, among others. The Colloquium is open to the academic community.

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