Concept
Burden of Proof
Premeditation, deliberation
Burden of Proof
The earlier sections treated premeditation and deliberation as facts about the defendant's mind that separate first degree murder from second degree. A further question is who must establish those facts and how firmly. Due process answers it: the prosecution must prove every element of the charged offense beyond a reasonable doubt, and premeditation is such an element wherever the statute makes it part of first degree murder.1 The section takes two steps. The first covers the older sanity cases, which show premeditation staying on the state even when the defendant carries a burden somewhere else in the trial. The second covers the Mullaney and Patterson pair, which marks when a state may put the burden on the defendant for facts that mitigate a killing.
Premeditation as an Element
The reasonable doubt standard attaches to premeditation because the Due Process Clause protects the accused against conviction except on proof beyond a reasonable doubt of every fact necessary to constitute the crime charged.2 A first degree statute built on a willful, deliberate, and premeditated killing makes deliberation and premeditation facts necessary to that crime, so the state must prove them. The reason for the standard is practical. A conviction costs the defendant liberty and brands him with stigma, and the reasonable doubt requirement gives concrete substance to the presumption of innocence by reducing the risk of an erroneous conviction.3 Premeditation tests that reasoning closely, because it is a state of mind and a defendant knows his own mind better than anyone. The temptation is to ask him to explain himself, but the Supreme Court has said that the defendant's special knowledge of his intent does not justify shifting the burden to him.4
The older federal sanity cases show the principle at work. In Davis v. United States (1895), Dennis Davis was charged with feloniously and willfully killing another man with malice aforethought, and he raised the question of his mental capacity.5 The Court held that the burden of proof is never on the accused to disprove the facts necessary to establish the crime. It stays on the prosecution from the beginning to the end of the trial and reaches every element.6 Because murder presupposes a mind capable of criminal intent, a jury that has a reasonable doubt on all the evidence whether the accused was legally capable, or whether he willfully, deliberately, and with malice took life, must acquit of the offense charged.7 That was a rule of federal procedure and not a constitutional command, a limit the later cases make important.8
Leland v. Oregon (1952) tested how far Davis reached. Oregon required a defendant to prove insanity beyond a reasonable doubt, a heavier burden than any other state imposed, and the Supreme Court upheld it. The state still carried the burden on every element of the crime, including premeditation, deliberation, malice, and intent, and that burden stayed with the state throughout the trial.9 The jury first decided the elements on all the evidence, including the evidence of mental condition, and only then turned separately to legal sanity.10 The Court explained that it would defer to Oregon's policy on who proves sanity, since a different procedure that seemed fairer was not on that account a violation of the Fourteenth Amendment.11 Taken together, the two cases mean that a state may choose who proves insanity, but a defendant never carries the burden of disproving premeditation.
Presumptions raise the same concern in a quieter form. In Sandstrom v. Montana, the jury was told that the law presumes a person intends the ordinary consequences of his voluntary acts, and the charge was deliberate homicide committed purposely or knowingly. The Court reversed because a reasonable juror could have read the instruction as conclusive or as requiring the defendant to prove he lacked the mental state, and either reading relieves the state of its burden on intent.12 The same defect would arise if a jury were told to presume premeditation from the fact of an intentional killing. A permissive inference is different, because the jury remains free to accept or reject it and the burden does not move.13 That is why the deadly weapon inference from the earlier section is safe: it permits a finding of intent to kill and never directs one.
The Ohio statute in Martin v. Ohio shows a state burden on a premeditation-type element coexisting with a defense burden elsewhere. Ohio defined murder as purposely causing death with prior calculation and design and placed the burden of proving self-defense on the defendant. The conviction stood because the instructions made clear that the state had to prove every element, including prior calculation and design, and that the self-defense evidence could also be weighed in deciding whether a reasonable doubt existed on any element.14
A matched pair shows the line. In the Leland pattern, the jury is told that the state must prove deliberate and premeditated killing beyond a reasonable doubt, and that if the evidence leaves a reasonable doubt on premeditation, the verdict cannot be first degree.15 Change one instruction. The judge tells the jury that an intentional killing is presumed to be premeditated unless the defendant shows that he acted on impulse. The state's proof is the same and the defendant's evidence is the same, but the burden on an element has moved to him, and a presumption of premeditation is exactly the move due process forbids.
Mullaney and Patterson
The second question is what a state may ask a defendant to prove once the state has established the killing and the intent. Two decisions of the 1970s answer it, and they pull in different directions, so the exam skill is knowing which fact separates them.
In Mullaney v. Wilbur (1975), Maine treated felonious homicide as one offense divided into murder and manslaughter, with malice aforethought as the dividing criterion. Maine implied malice from an intentional and unlawful killing unless the defendant proved by a preponderance of the evidence that he acted in the heat of passion on sudden provocation.17 The Supreme Court held that due process requires the prosecution to prove the absence of heat of passion beyond a reasonable doubt when the issue is properly presented.18 The reasoning has two parts. Under the Maine rule, a defendant could receive a life sentence when it was as likely as not that he deserved the far lighter manslaughter penalty. Maine also argued that murder and manslaughter were degrees of one crime, so the state's burden on the crime was unaffected, but the Court rejected that because the difference in lost liberty between the two convictions is too great for the state to avoid the reasonable doubt standard.19 The Court later described the holding as barring a state from redefining elements as factors bearing only on punishment.20
Patterson v. New York (1977) upheld a burden shift in a case that looked nearly identical. Gordon Patterson borrowed a rifle, found his estranged wife in a state of semiundress with a neighbor, and shot the neighbor twice in the head.21 New York defined murder as intentionally causing death, and it let the defendant reduce the crime to manslaughter by proving extreme emotional disturbance by a preponderance of the evidence. The Court found no violation, because the state had proved every fact of the crime beyond a reasonable doubt and nothing had been presumed or inferred against the defendant.22 Two differences carried the case. Malice aforethought was not an element of New York murder, so the absence of provocation was not needed to prove any element. New York had also broadened the old heat of passion idea into the wider extreme emotional disturbance defense, and placing the burden on the defendant was a fair price for that gain.23 The Court added that the state was unwilling to disprove the defense, fearing that too many people deserving murder convictions would escape if a reasonable doubt about emotional state were enough.24
Reading the two together, Mullaney held that a state must prove every ingredient of an offense beyond a reasonable doubt and may not shift the burden by presuming that ingredient from proof of the other elements.25 Patterson then confirmed that the test depends on how state law defines the offense, so a state may place the burden on the defendant for a mitigating fact that is not an element.26 The exact dividing line is unclear at best, and this explains why Patterson has drawn criticism as a formal rule that legislatures can manipulate by deciding what to call an element.27 For premeditation, the consequence is plain. In a jurisdiction where premeditation is part of the definition of first degree murder, the defendant cannot be made to prove its absence. A defendant can be made to prove a separate mitigating defense that negates no element.
A short contrast shows which fact moves the answer. In a state like Maine, where malice aforethought is an element and the jury is told to imply it unless the defendant proves heat of passion, the instruction fails, because the defendant is being made to disprove an element.28 In a state like New York, where murder is defined as intentional killing and extreme emotional disturbance is a separate affirmative defense, the same defendant may be made to prove the disturbance.29 The facts of the killing are the same in both states, and what differs is whether the state's definition of the crime includes the fact the defendant is asked to prove.
Premeditation as an Element
Wherever a statute defines first degree murder as a willful, deliberate, and premeditated killing, premeditation and deliberation are part of the definition of the crime. That makes them elements, and the prosecution must prove each element beyond a reasonable doubt. The point is easy to state and easy to lose on an exam, because premeditation is a fact about the defendant's own mind, and the person who knows that mind best is the defendant. A system that wanted to save effort might ask him to explain that he acted on impulse. The cases in this section show why the law refuses, and they show it most clearly where the defendant's mental condition is the very thing in dispute.
The reason for the refusal comes from what a first degree verdict does. Premeditation is the fact that separates first degree murder from second degree murder, so a finding on it decides whether the defendant faces the most severe punishment the statute offers. A burden of proof allocates the risk of a wrong answer. If the defendant had to disprove premeditation, then a jury that could not decide whether he had reflected would be required to resolve its doubt against him and convict of the graver offense. Leaving the burden on the state sends that doubt the other way, so that an unresolved question about a state of mind produces second degree murder and not first.
The federal decision in Davis v. United States shows the principle at its source. Dennis Davis was charged with feloniously, willfully, and with malice aforethought killing another man, and the question of his mental capacity came into the case.31 The Court said that, strictly speaking, the burden of proof in a criminal case is never on the accused to disprove the facts needed to establish the crime. It rests on the prosecution from the start of the trial to the end and reaches every element.32 Murder requires a mind capable of forming a criminal purpose. So if the jury, on all the evidence, has a reasonable doubt whether the accused was legally capable, or whether he willfully, deliberately, and with malice took life, it cannot say that his will and his acts joined in the crime charged, and it must acquit of that offense.33
Leland v. Oregon then tested the principle in a setting where the defendant did carry a burden. Oregon, following the traditional view that most people are sane, required the defendant to prove insanity, and the conviction was affirmed.34 What matters for premeditation is how the trial was structured around that burden. The jury was instructed that, even though a plea of insanity had been made, the state had to prove every element of the crime beyond a reasonable doubt, including premeditation, deliberation, malice, and intent. The instructions added that this burden never shifted.35 The judge also told the jurors to weigh the evidence of mental condition together with all the other evidence on the defendant's ability to premeditate and deliberate, and that a defendant lacking that ability could not be guilty of first degree murder.36 Legal insanity was a separate question, raised by a special plea and decided by a special verdict, so the jury could find the defendant incapable of cool reflection without finding him insane.37
The two cases divide the burdens cleanly. Insanity is an issue set apart from the crime charged, and a state may choose to make the defendant prove it. Premeditation and deliberation belong to the definition of first degree murder itself, so the state keeps the burden on them even when the defendant has put his mental condition in issue and even when he holds the burden on insanity. The Leland pattern shows the permitted version: the jury is told that the state must prove a deliberate and premeditated killing beyond a reasonable doubt and that, if the evidence leaves a reasonable doubt on that point, the verdict cannot be first degree. Alter one instruction and the answer changes. If the judge told the jury that the defendant must show he acted without deliberation, or that an intentional killing is presumed premeditated unless he proves otherwise, the burden on an element would have been moved to him. A defendant never has to disprove premeditation, and an instruction that says otherwise fails whatever else the state has proved.
The sequence also tells you how to handle a first degree problem in which the defendant offers evidence of mental disturbance. That evidence does not need to meet the standard for legal insanity to matter. It need only leave the jury with a reasonable doubt that the defendant was able to premeditate and deliberate, and if it does, first degree murder fails and a second degree verdict remains available when the killing was still intentional.
Mullaney and Patterson
The preceding discussion established that premeditation and deliberation, once a statute writes them into first degree murder, are elements the state must prove. A neighboring question remains. When a state lets a defendant reduce murder to manslaughter by showing provocation or emotional disturbance, may it make him prove that mitigating fact? Two decisions from the 1970s answer in apparently opposite directions. Both rest on the due process rule that a conviction requires proof beyond a reasonable doubt of every fact necessary to constitute the crime charged,39 and the exam skill lies in seeing which fact separates them.
Mullaney: Presuming an Element
In Mullaney v. Wilbur the Court reviewed Maine's law of homicide. Maine treated every intentional or criminally reckless killing, absent justification or excuse, as felonious homicide punished as murder by life imprisonment. The defendant could reduce it to manslaughter, punishable by a fine of up to $1,000 or imprisonment for up to 20 years, only by proving heat of passion on sudden provocation by a preponderance of the evidence.40 The Court held that due process requires the prosecution to prove the absence of heat of passion beyond a reasonable doubt when the issue is properly raised.41
The reasoning begins with the burden's effect on the jury's doubt. Under Maine's rule a jury that thought it as likely as not that the defendant acted in a heat of passion still had to return a murder verdict, so a defendant could receive a life sentence when the evidence suggested he deserved a far lighter one.42 Maine answered that murder and manslaughter were simply two grades of one crime, so the state's burden on the crime was untouched. The Court rejected that answer because the difference in lost liberty between the two convictions is too great to let the state avoid the reasonable doubt standard.43 The Court also dismissed two practical objections. Intent is often a fact peculiarly within the defendant's knowledge, but that has never justified shifting the burden to him. And proving a negative is not unusual, since Maine already made the prosecution disprove self-defense, which is practically the same task as negating passion.44
The history in the opinion explains why Maine thought its rule was safe. At early common law malice was implied from the killing, and once the prosecution proved the homicide it fell to the accused to make out circumstances of justification, excuse, or alleviation.45 Maine had inherited that tradition, and Mullaney held that however traditional the practice, it could not stand once malice was part of what made a killing murder.46 The opinion also notes that some jurisdictions went further and divided murder into degrees, typically reserving the heaviest punishment for first degree and requiring the prosecution to prove premeditation and deliberation to establish it.47 Maine had no such degrees. Its trial court did describe express malice as a premeditated design to kill, but it made clear that express malice need not be shown because malice would be implied from the killing,48 and the Maine court made clear that malice aforethought carried no factual meaning about premeditation.49 So Mullaney is not a premeditation case, but it supplies the principle that governs premeditation wherever a state makes it an element: the state may not presume the element and make the defendant rebut it.
Patterson: Separate Affirmative Defenses
Patterson v. New York looked nearly identical, which is why it is so useful to compare. Gordon Patterson borrowed a rifle, saw his estranged wife in a state of semiundress with a neighbor, and shot the neighbor twice in the head.50 New York defined murder as causing death with intent to kill, and it made extreme emotional disturbance with a reasonable explanation an affirmative defense that reduced the crime to manslaughter if the defendant proved it by a preponderance.51 The Court upheld the conviction. The state had proved death, intent, and causation beyond a reasonable doubt, and no further fact was presumed or inferred against the defendant.52
Two differences carried the result. In New York, unlike Maine, malice aforethought was not an element of murder, so the absence of provocation was not needed to establish any element of the offense.53 New York had also replaced the narrow heat of passion idea with the broader extreme emotional disturbance defense, and the Court treated the burden on the defendant as a reasonable price for that expansion.54 The state, for its part, was unwilling to disprove the defense, fearing that too many people deserving a murder conviction would escape if a bare reasonable doubt about emotional state were enough.55 The Court did not treat that freedom as unlimited, since a legislature may not declare a person presumptively guilty or let proof of identity create a presumption of every fact essential to guilt.56 It also refused to read Mullaney as requiring the state to disprove every fact that bears on culpability.57
Running the Distinction
Because the cases turn on how the state defines the offense, a burden question is best handled in a fixed order. The steps are these:
Put the two states side by side and the killing can be identical. Maine made absence of provocation part of malice aforethought and told the jury to imply malice unless the defendant proved passion, so the defendant was disproving an element.58 New York defined murder without malice and treated emotional disturbance as a mitigating defense outside the definition, so the defendant was proving something the state never had to establish.59 Only the legislature's definition of the crime changed, and that is what decided the result.
The exact boundary is unclear, and Patterson has drawn the criticism that it lets legislatures reallocate burdens by choosing what to call an element.60 A later decision reaffirmed the core of Mullaney, that a state cannot avoid the reasonable doubt requirement by redefining elements as factors bearing only on punishment.61 For premeditation the consequence follows directly. Where premeditation and deliberation are part of the definition of first degree murder, the defendant cannot be made to disprove them, though he may be made to prove a distinct mitigating defense that negates no element.