Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Absent a guilty plea,1 the Due Process Clause requires proof beyond a reasonable doubt before a person may be convicted of a crime. The reasonable doubt standard is closely related to the rule that a defendant is presumed innocent unless proven guilty.2 These rules help to ensure a defendant a fair trial3 and require that a jury consider a case solely on the evidence.4 The Supreme Court has explained:

For many years, the Court presumed that “reasonable doubt” was the proper standard for criminal cases.6 However, because the standard was so widely accepted, it was not until 1970 that the Court expressly held that due process required the standard. That year, the Court held in In re Winship that the Due Process Clauses of the Fifth and Fourteenth Amendments protect the accused against conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” 7

The Court had long held under the Due Process Clause that it must set aside convictions that are supported by no evidence at all.8 However, the holding in Winship left open the question of whether appellate courts reviewing criminal convictions should weigh the sufficiency of trial evidence. In the 1979 case Jackson v. Virginia, the Court held that federal courts, on direct appeal of federal convictions or collateral review of state convictions, must satisfy themselves that the evidence on the record could reasonably support a finding of guilt beyond a reasonable doubt.9 The appropriate inquiry is not whether the reviewing court itself believes the evidence at the trial established guilt beyond a reasonable doubt, but whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.10

Due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged.11 Thus, the Court held in Mullaney v. Wilbur that it was unconstitutional to require a defendant charged with murder to prove that he acted “in the heat of passion on sudden provocation” in order to reduce his offense from homicide to manslaughter.12 The Court indicated that a balancing-of-interests test should be used to determine when the Due Process Clause required the prosecution to carry the burden of proof and when some part of the burden might be shifted to the defendant. The decision called into question practices in many states under which some burdens of persuasion were borne by the defense, and raised the prospect that the prosecution must bear all burdens of persuasion—a significant task given the large numbers of affirmative defenses.13

In a subsequent case, however, the Court rejected the argument that Mullaney means that the prosecution must negate an insanity defense.14 Later, in Patterson v. New York, the Court upheld a state statute that required a defendant asserting extreme emotional disturbance as an affirmative defense to murder to prove the defense by a preponderance of the evidence.15 According to the Court, the constitutional deficiency in Mullaney was that the statute made malice an element of the offense, permitted malice to be presumed upon proof of the other elements, and then required the defendant to prove the absence of malice. In Patterson, by contrast, the statute obligated the state to prove each element of the offense (including death, intent to kill, and causation) beyond a reasonable doubt, while allowing the defendant to prove by preponderance of the evidence an affirmative defense that would reduce the degree of the offense.16

Another distinction that can substantially affect the prosecution’s burden is whether a fact to be proven in a criminal trial is an element of a crime or a factor in determining a convicted offender’s sentence. Although a criminal conviction is generally established by a jury using the “beyond a reasonable doubt” standard, sentencing factors are generally evaluated by a judge using few evidentiary rules and under the more lenient “preponderance of the evidence standard.” The Court has taken a formalistic approach to this issue, allowing states to designate which facts fall under which of these two categories. For instance, the Court has held that a state may designate as a sentencing factor the question whether a defendant “visibly possessed a gun” during a crime, allowing a judge to resolve the question based on the preponderance of evidence.17

Although the Court has generally deferred to the legislature’s characterizations in this area, it limited that principle in Apprendi v. New Jersey, holding that a sentencing factor cannot be used to increase the maximum penalty imposed for the underlying crime.18 The Court subsequently overruled conflicting prior case law that had held constitutional the use of aggravating sentencing factors by judges when imposing capital punishment.19 These holdings are subject to at least one exception, however, as the Apprendi Court held that its limitation does not apply to sentencing enhancements based on recidivism.20 Legislatures might also evade these limitations by revising criminal provisions to increase maximum penalties, then providing for mitigating factors that could reduce sentences within the newly established sentencing ranges.

An issue related to the burden of proof involves statutory presumptions, where proof of a “presumed fact” that is a required element of a crime is established through proof of another fact, known as the “basic fact.” 21 In Tot v. United States, the Court held that a statutory presumption was valid under the Due Process Clause only if it met a “rational connection” test.22 In that case, the Court struck down a presumption that a person possessing an illegal firearm had shipped, transported, or received the firearm in interstate commerce. “Under our decisions,” it explained, “a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from the proof of the other is arbitrary because of lack of connection between the two in common experience.” 23

In Leary v. United States, the Court applied a more stringent due process test to require that, for a “rational connection” to exist, it must “at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” 24 The Leary Court struck down a provision that permitted a jury to infer from a defendant’s possession of marijuana his knowledge of its illegal importation. A lengthy canvass of factual materials established to the Court’s satisfaction that, although the greater part of marijuana consumed in the United States was of foreign origin, there was still a significant amount produced domestically, and there was no way to assure that the majority of those possessing marijuana have any reason to know whether their marijuana is imported.25 The Court left open the question of whether a presumption that survived the “rational connection” test “must also satisfy the criminal ‘reasonable doubt’ standard if proof of the crime charged or an essential element thereof depends upon its use.” 26

In a later case, a closely divided Court drew a distinction between mandatory presumptions, which a jury must accept, and permissive presumptions, which may be presented to the jury as part of all the evidence to be considered. With respect to mandatory presumptions, “since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption, unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.” 27 But, with respect to permissive presumptions,

Applying that analysis, the Court concluded that a statute providing that the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle did not violate due process.29

Footnotes

1

See Amdt14.S1.5.5.4 Plea Bargaining in Pre-Trial Process.

2

The presumption of innocence has been central to a number of Supreme Court cases. Under some circumstances, it is a violation of due process and reversible error to fail to instruct the jury that the defendant is entitled to a presumption of innocence, although the defendant bears a heavy burden to show that an erroneous instruction or the failure to give a requested instruction tainted his conviction. Taylor v. Kentucky, 436 U.S. 478 (1978). However, an instruction on the presumption of innocence need not be given in every case. Kentucky v. Whorton, 441 U.S. 786 (1979) (reiterating that courts must look to the totality of the circumstances in order to determine if failure to so instruct denied due process). The circumstances emphasized in Taylor included skeletal instructions on burden of proof combined with the prosecutor’s remarks in his opening and closing statements inviting the jury to consider the defendant’s prior record and his indictment in the present case as indicating guilt. See also Sandstrom v. Montana, 442 U.S. 510 (1979) (instructing jury trying person charged with “purposely or knowingly” causing victim’s death that “law presumes that a person intends the ordinary consequences of his voluntary acts” denied due process because jury could have treated the presumption as conclusive or as shifting burden of persuasion and in either event state would not have carried its burden of proving guilt). See also Cupp v. Naughten, 414 U.S. 141 (1973); Henderson v. Kibbe, 431 U.S. 145, 154–55 (1977). For other cases applying Sandstrom, see Francis v. Franklin, 471 U.S. 307 (1985) (contradictory but ambiguous instruction not clearly explaining state’s burden of persuasion on intent does not erase Sandstrom error in earlier part of charge); Rose v. Clark, 478 U.S. 570 (1986) (Sandstrom error can in some circumstances constitute harmless error under principles of Chapman v. California, 386 U.S. 18 (1967)); Middleton v. McNeil, 541 U.S. 433 (2004) (state courts could assume that an erroneous jury instruction was not reasonably likely to have misled a jury where other instructions made correct standard clear). Similarly, improper arguments by a prosecutor do not necessarily constitute “plain error,” and a reviewing court may consider in the context of the entire record of the trial the trial court’s failure to redress such error in the absence of contemporaneous objection. United States v. Young, 470 U.S. 1 (1985).

3

E.g., Deutch v. United States, 367 U.S. 456, 471 (1961). See also Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam) (jury instruction that explains “reasonable doubt” as doubt that would give rise to a “grave uncertainty,” as equivalent to a “substantial doubt,” and as requiring a “moral certainty,” suggests a higher degree of certainty than is required for acquittal, and therefore violates the Due Process Clause). But see Victor v. Nebraska, 511 U.S. 1 (1994) (considered as a whole, jury instructions that define “reasonable doubt” as requiring a “moral certainty” or as equivalent to “substantial doubt” did not violate due process because other clarifying language was included.)

4

Holt v. United States, 218 U.S. 245 (1910); Agnew v. United States, 165 U.S. 36 (1897). These cases overturned Coffin v. United States, 156 U.S. 432, 460 (1895), in which the Court held that the presumption of innocence was evidence from which the jury could find a reasonable doubt.

5

In re Winship, 397 U.S. 358, 363 (1970) (quoting Coffin, 156 U.S. at 453). Justice John Marshall Harlan’s concurrence in In re Winship proceeded on the basis that, because there is likelihood of error in any system of reconstructing past events, the error of convicting the innocent should be reduced to the greatest extent possible through the use of the reasonable doubt standard. Id. at 368.

6

Miles v. United States, 103 U.S. 304, 312 (1881); Davis v. United States, 160 U.S. 469, 488 (1895); Holt, 218 U.S. at 253; Speiser v. Randall, 357 U.S. 513, 525–26 (1958).

7

Winship, 397 U.S. at 364. See Estelle v. Williams, 425 U.S. 501, 503 (1976); Henderson v. Kibbe, 431 U.S. 145, 153 (1977); Ulster Cnty. Ct. v. Allen, 442 U.S. 140, 156 (1979); Sandstrom v. Montana, 442 U.S. 510, 520–24 (1979). See also Sullivan v. Louisiana, 508 U.S. 275 (1993) ( Sixth Amendment guarantee of trial by jury requires a jury verdict of guilty beyond a reasonable doubt). On the interrelationship of the reasonable doubt burden and defendant’s entitlement to a presumption of innocence, see Taylor v. Kentucky, 436 U.S. 478, 483–86 (1978), and Kentucky v. Whorton, 441 U.S. 786 (1979).

8

Thompson v. City of Louisville, 362 U.S. 199 (1960); Garner v. Louisiana, 368 U.S. 157 (1961); Taylor v. Louisiana, 370 U.S. 154 (1962); Barr v. City of Columbia, 378 U.S. 146 (1964); Johnson v. Florida, 391 U.S. 596 (1968). See also Chessman v. Teets, 354 U.S. 156 (1957).

9

443 U.S. 307 (1979).

10

443 U.S. at 316, 18–19. See also Musacchio v. United States, 136 S. Ct. 709 (2016) ( “When a jury finds guilt after being instructed on all elements of the charged crime plus one more element, the fact that the government did not introduce evidence of the additional element—which was not required to prove the offense, but was included in the erroneous jury instruction—does not implicate the principles that sufficiency review protects.” ); Griffin v. United States, 502 U.S. 46 (1991) (general guilty verdict on a multiple-object conspiracy need not be set aside if the evidence is inadequate to support conviction as to one of the objects of the conviction, but is adequate to support conviction as to another object).

11

Bunkley v. Florida, 538 U.S. 835 (2003); Fiore v. White, 528 U.S. 23 (1999). These cases both involved defendants convicted under state statutes that were subsequently interpreted in a way that would have precluded their conviction. The Court remanded the cases to determine if the new interpretation was in effect at the time of the previous convictions, in which case the convictions would violate due process.

12

421 U.S. 684 (1975). See also Sandstrom v. Montana, 442 U.S. 510, 520–24 (1979).

13

The general notion of “burden of proof” can be divided into the “burden of production” (providing probative evidence on a particular issue) and the “burden of persuasion” (persuading the factfinder with respect to an issue by a standard such as proof beyond a reasonable doubt). Mullaney, 421 U.S. at 695 n.20.

14

Rivera v. Delaware, 429 U.S. 877 (1976) (dismissing as not presenting a substantial federal question an appeal from a holding that Mullaney did not prevent a state from placing on the defendant the burden of proving insanity by a preponderance of the evidence). See Patterson v. New York, 432 U.S. 197, 202–05 (1977) (explaining the import of Rivera). Justice William Rehnquist and Chief Justice Warren Burger, concurring in Mullaney, had argued that the case did not require any reconsideration of the holding in Leland v. Oregon, 343 U.S. 790 (1952), that the defense may be required to prove insanity beyond a reasonable doubt. 421 U.S. at 704, 705.

15

432 U.S. 197 (1977). Proving the defense would reduce a murder offense to manslaughter.

16

See also Dixon v. United States, 548 U.S. 1 (2006) (requiring defendant in a federal firearms case to prove her duress defense by a preponderance of evidence did not violate due process). Justice Lewis Powell criticized the distinction in Patterson as formalistic, as the legislature can shift burdens of persuasion between prosecution and defense easily through the statutory definitions of the offenses. Dissenting in Patterson, Justice Powell argued that the two statutes were functional equivalents that should be treated alike constitutionally. He would hold that as to those facts that historically have made a substantial difference in the punishment and stigma flowing from a criminal act the state always bears the burden of persuasion but that new affirmative defenses may be created and the burden of establishing them placed on the defendant. 432 U.S. at 216. The Court followed Patterson in Martin v. Ohio, 480 U.S. 228 (1987) (state need not disprove defendant acted in self-defense based on honest belief she was in imminent danger, when offense is aggravated murder, an element of which is “prior calculation and design” ). Justice Powell, again dissenting, urged a distinction between defenses that negate an element of the crime and those that do not. Id. at 236, 240.

17

McMillan v. Pennsylvania, 477 U.S. 79 (1986). These types of cases may also implicate the Sixth Amendment, as the right to a jury extends to all facts establishing the elements of a crime, while sentencing factors may be evaluated by a judge. See Amdt6.6.3.1 Overview of When the Right to Counsel Applies.

18

530 U.S. 466, 490 (2000) (interpreting New Jersey’s hate crime law). Prior to its decision in Apprendi, the Court had held that sentencing factors determinative of minimum sentences could be decided by a judge. McMillan v. Pennsylvania, 477 U.S. 79 (1986). Although the vitality of McMillan was put in doubt by Apprendi, the Court subsequently reaffirmed McMillan in Harris v. United States, 536 U.S. 545 (2002).

19

Walton v. Arizona, 497 U.S. 639 (1990), overruled by Ring v. Arizona, 536 U.S. 584 (2002).

20

530 U.S. at 490. As enhancement of sentences for repeat offenders is traditionally considered a part of sentencing, establishing the existence of previous valid convictions may be made by a judge, despite its resulting in a significant increase in the maximum sentence available. Almendarez-Torres v. United States, 523 U.S. 224 (1998) (deported alien reentering the United States subject to a maximum sentence of two years, but upon proof of felony record, is subject to a maximum of twenty years). See also Parke v. Raley, 506 U.S. 20 (1992) (where prosecutor has burden of establishing a prior conviction, a defendant can be required to bear the burden of challenging the validity of such a conviction).

21

See, e.g., Yee Hem v. United States, 268 U.S. 178 (1925) (upholding statute that proscribed possession of smoking opium that had been illegally imported and authorized jury to presume illegal importation from fact of possession); Manley v. Georgia, 279 U.S. 1 (1929) (invalidating statutory presumption that every insolvency of a bank shall be deemed fraudulent).

22

319 U.S. 463, 467–68 (1943). Compare United States v. Gainey, 380 U.S. 63 (1965) (upholding presumption from presence at site of illegal still that defendant was “carrying on” or aiding in “carrying on” its operation), with United States v. Romano, 382 U.S. 136 (1965) (voiding presumption from presence at site of illegal still that defendant had possession, custody, or control of still).

23

319 U.S. at 467.

24

395 U.S. 6, 36 (1969).

25

395 U.S. at 37–54. The Court disapproved some of the reasoning in Yee Hem, supra, but factually distinguished that case as involving users of “hard” narcotics.

26

395 U.S. at 36 n.64. The matter was also left open in Turner v. United States, 396 U.S. 398 (1970) (judged by either “rational connection” or “reasonable doubt,” a presumption that the possessor of heroin knew it was illegally imported was valid, but the same presumption with regard to cocaine was invalid under the “rational connection” test because a great deal of the substance was produced domestically), and in Barnes v. United States, 412 U.S. 837 (1973) (under either test a presumption that possession of recently stolen property, if not satisfactorily explained, is grounds for inferring possessor knew it was stolen satisfies due process).

27

Ulster Cnty. Ct. v. Allen, 442 U.S. 140, 167 (1979).

28

442 U.S. at 167.

29

442 U.S. at 142. The majority thought that possession was more likely than not the case from the circumstances, while the four dissenters disagreed. Id. at 168. See also Estelle v. McGuire, 502 U.S. 62 (1991) (upholding a jury instruction that, in the view of dissenting Justices O’Connor and Stevens, seemed to direct the jury to draw the inference that evidence that a child had been “battered” in the past meant that the defendant, the child’s father, had necessarily done the battering. Id. at 75).