Burden of Proof and Patterson

Burden of Proof and Patterson

Section 210.3(1)(b) says what turns an otherwise-murder homicide into manslaughter, namely extreme mental or emotional disturbance for which there is a reasonable explanation or excuse, but its text says nothing about who must prove that disturbance.¹ Two burdens are therefore left open. The burden of production is the obligation to put forward enough evidence that an issue reaches the factfinder at all, and the burden of persuasion is the risk of losing when, after all the evidence is in, the factfinder is left unconvinced. The second burden matters most when the evidence about a defendant's emotional state is evenly balanced, because the party who carries it loses on a tie. Disturbance is a state of mind that is hard to prove or refute from the outside, so a tie is a realistic prospect, and a rule about who bears the risk of one can decide the case.

The Code and New York share the same substantive formula but answer the burden question in opposite ways. This section sets out the Code's allocation, then New York's departure from it, and then Patterson v. New York, which tested that departure against the Due Process Clause.²

The Code's Allocation

Under the Model Penal Code, once extreme emotional disturbance is properly raised, the prosecution must prove its absence beyond a reasonable doubt.³ That allocation comes from the Code's general provisions on burdens and not from the text of § 210.3(1)(b), which is why the dissent in Patterson cites Code §§ 1.12 and 210.3 together when it describes the rule.⁴ The phrase "properly raised" implies a threshold: the defendant must supply enough evidence to put disturbance in issue, and only then does the prosecution's burden of persuasion attach.⁵ After that threshold is crossed, the risk of nonpersuasion stays with the State for the rest of the trial.

The mechanism follows from that allocation. Once the defendant has put disturbance in issue, the absence of disturbance becomes something the State must establish before it can obtain a murder verdict, so a reasonable doubt about the defendant's emotional state defeats the murder charge and leaves manslaughter open, provided the reasonable-explanation component is also met. In practice, doubt about a mental state that only the defendant can fully describe is resolved in the defendant's favor. The price of that arrangement is that the State must disprove a mental condition from the outside, which is the difficulty that led New York to choose differently.

New York's Affirmative Defense

New York took its standard from the Code's manslaughter provision but declined to take the Code's allocation of burdens.⁶ The form of the statute is what matters. Under Penal Law § 125.25(1)(a), a person is guilty of second-degree murder when, with intent to cause the death of another, he causes that death, except that in any prosecution under that subdivision it is an affirmative defense that the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, judged from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be.⁷ The route to the lesser offense runs through § 125.20(2), which makes it first-degree manslaughter to kill with intent to cause death under circumstances that do not constitute murder because the actor acted under the influence of extreme emotional disturbance.⁸

The court in People v. Shelton observed that the New York provision is sui generis, meaning that the defense applies to one crime only, second-degree murder.⁹ Shelton also shows the order of analysis the statute's form creates. The court first found that the defendant caused the victim's death with intent to do so, which spelled out every element of second-degree murder, and only then turned to the statutory defense as the next issue.¹⁰ Disturbance enters the case as a matter raised after the elements are proved, which is exactly what labeling it a defense accomplishes.

An affirmative defense is one the defendant must raise and establish, in contrast to a matter the prosecution must negate. In New York the defendant carries both the burden of production and the burden of persuasion on extreme emotional disturbance,¹¹ and the standard of persuasion is a preponderance of the evidence, so a defendant who proves the disturbance by that margin reduces murder to manslaughter.¹² The reason New York gave for this choice appears in the Patterson majority. The State was willing to enact the broader extreme-disturbance defense, which the Court described as a substantially expanded version of heat of passion, only if the defendant established the facts with sufficient certainty.¹³ The State was unwilling to prove the absence of those facts beyond a reasonable doubt, perhaps fearing that proof would be too difficult and that too many people deserving treatment as murderers would escape that label if the evidence need only raise a reasonable doubt about the defendant's emotional state.¹⁴ The concern is easy to trace. Disturbance lives in the defendant's own mind, so a burden on the prosecution would let a defendant generate doubt with little more than testimony about how the killing felt, and the State would then have to refute that testimony from outside. A burden on the defendant places the risk of an unprovable mental state on the person best placed to supply the evidence.

Nothing about the evidence changed between the two outcomes. Only the allocation did, and the trap is assuming the extreme-disturbance standard carries the Code's burden allocation with it. The standard that defines the defense and the rule that says who must prove it are separate choices, and a legislature can adopt the first without the second.

Patterson and Due Process

In Patterson, Gordon Patterson, estranged from his wife, borrowed a rifle and went to the home of his father-in-law, where he saw her through a window in a state of semiundress with a neighbor named Northrup, to whom she had once been engaged. He entered the house and killed Northrup by shooting him twice in the head.¹⁶ Charged with second-degree murder, he confessed before trial and raised extreme emotional disturbance at trial.¹⁷ The jury was told that the State had to prove intent to kill beyond a reasonable doubt, that Patterson had to prove his affirmative defense by a preponderance of the evidence, and that if he did, the verdict would be manslaughter.¹⁸ The Supreme Court held that this instruction did not deprive Patterson of due process.¹⁹

The due process question began with the rule that the State must prove beyond a reasonable doubt every fact necessary to constitute the crime charged.²⁰ The Court therefore asked which facts made up murder under New York's statute. The answer was the death, the intent to kill, and causation, with no further fact presumed or inferred.²¹ Extreme emotional disturbance negated none of those facts. It was a separate issue on which the defendant could be required to carry the burden of persuasion.²² The defense could be treated as separate because a defendant can intend to kill while under extreme emotional disturbance, so proving the defense does not amount to disproving intent.²³ The Court later summarized the holding the same way in Martin v. Ohio: due process was satisfied where New York proved each element of murder beyond a reasonable doubt and placed on the defendant the burden of proving the affirmative defense.²⁴

Two further supports ran through the opinion. The Court tied the result to Leland v. Oregon and Rivera v. Delaware, which had allowed states to require a defendant to prove insanity by a preponderance after the State established the facts of the crime.²⁵ It also reasoned that a State that chooses to recognize a mitigating circumstance need not prove its nonexistence whenever the fact is put in issue, if the State judges that too cumbersome, too expensive, and too inaccurate.²⁶ Those points explain why the Court saw the burden as the price of a more generous defense and not as a penalty on defendants.

The contrast with Mullaney v. Wilbur shows which facts carried the result. Maine defined murder and manslaughter through malice aforethought, and the jury was told that malice was to be conclusively implied from an intentional and unlawful killing unless the defendant proved heat of passion on sudden provocation, with malice and heat of passion described as inconsistent things. The Court held that this approach violated due process.²⁷ Patterson differed in two ways. Malice aforethought is not an element of New York murder, so the absence of provocation is not needed to establish an element, and the Code's broader standard gave defendants a substantially larger opportunity to reduce murder to manslaughter, which the Court regarded as a reasonable quid pro quo for placing the burden on the defendant.²⁸

The dissent attacked that distinction as one of form. Justice Powell argued that the Court ran a constitutional boundary line through the "barely visible space" separating Maine's law from New York's, on the basis of distinctions in language that are formalistic rather than substantive.²⁹ In the dissent's account, the Court's test lets a legislature shift the burden of persuasion on virtually any factor, so long as the factor goes unmentioned in the statutory definition of the crime and any reference to it is confined to the provisions on affirmative defenses.³⁰ That criticism did not carry the day. The decision stands as law, and it makes the statute's form, meaning what the legislature put in the definition of murder and what it left to a separate defense, the key to the constitutional question.³¹

Because a legislature can enact the Code's standard while allocating the burden differently, a problem that recites the extreme-disturbance language settles the substantive test and leaves the burden open. The analysis therefore begins with the jurisdiction's statute: whether it treats the absence of disturbance as something the prosecution must disprove once the issue is raised, as the Code does, or as an affirmative defense the defendant must prove, as New York does.³² If the statute follows the second course, Patterson answers the due process objection so long as the State has proved the elements of murder beyond a reasonable doubt and the defense negates none of them.³³