Defenses, Presumptions, and Burden of Proof in the Criminal Law*
The Yale Law Journal Volume 88, Number 7, June 1979 Defenses, Presumptions, and Burden of Proof in the Criminal Law* John Calvin Jeffries, Jr.t and Paul B. Stephan IIT TABLE OF CONTENTS Introduction 1325 I. Burden of Proof as an Exclusively Procedural Concern 1328 A. The Constitutionalizationof Burden of Proof and the Inadequacies of Formalism 1328 B. The ProceduralInterpretation of In re Winship 1333 C. The Rise and Fall of Mullaney v. Wilbur 1338 D. Flaws in the ProceduralApproach 1344 1. A Theoretical Critique 1344 2. A PracticalEvaluation 1353 II. Substantive Justice 1356 A. Substantive Justice and the Limits of Procedure 1357 B. Burden of Proof and Substantive Justice 1359 * This article is an elaboration of views first stated in Low & Jeffries, DICTA: Con- stitutionalizing the Criminal Law? Va. L. Weekly, Mar. 25, 1977, at 1. The authors would like to thank Thomas F. Bergin, Richard J. Bonnie, Ronald A. Cass, Thomas H. Jackson, Jerry L. Mashaw, Harvey S. Perlman, Stephen A. Saltzburg, and Peter Westen for their criticisms and comments. Thanks are also due to Jonathan Koch, Barbara Schilberg, and Douglas Sullivan for research assistance and to Andrew Brumby for preparation of the appendix. Most especially, the authors acknowledge their continuing intellectual indebted- ness to Peter W. Low. Without his guidance and encouragement, this piece would not have been done. t Assistant Professor of Law, the University of Virginia. $ J.D. 1977, the University of Virginia School of Law. 1325 The Yale Law Journal Vol. 88: 1325, 1979 III. A Constitutional Basis for the Scope of Winship 1365 A.
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