Burdens of proof and persuasion - Next Generation Bar Exam

1. For most affirmative defenses, what burden does the defendant bear before the jury may consider the defense?

   The burden of producing some evidence supporting it. Once a defense is raised, jurisdictions differ on whether the prosecution must then disprove it.

2. Under Mullaney v. Wilbur, what may a state not require of a defendant charged with murder?

   That the defendant prove heat of passion when malice is an element the state must prove. Shifting the burden on a fact that negates an element violates due process.

3. Under Cooper v. Oklahoma, what is the highest burden a state may place on a defendant to prove incompetence to stand trial?

   Preponderance of the evidence. Requiring clear and convincing evidence violates due process.

4. Under In re Winship, what must the prosecution prove beyond a reasonable doubt?

   Every fact necessary to constitute the crime charged. Due process requires this standard for each element.

5. Under County Court of Ulster County v. Allen, when is a permissive inference constitutional?

   When the inferred fact is more likely than not to flow from the proved fact. The jury remains free to reject the inference.

6. Under Patterson v. New York, on whom may a state place the burden of persuasion for an affirmative defense?

   The defendant. A state may require the defendant to prove an affirmative defense that does not negate an element of the crime.

7. Under Lego v. Twomey, what standard governs the prosecution's proof that a confession was voluntary?

   Preponderance of the evidence. States may adopt a higher standard.

8. A judge instructs the jury, 'The law presumes that a person intends the ordinary consequences of his voluntary acts.' What is the constitutional defect?

   It is a mandatory presumption that could shift the burden on intent to the defendant. Sandstrom held that such an instruction violates due process.

9. What burden does federal law place on a defendant asserting insanity?

   Proof by clear and convincing evidence. The Insanity Defense Reform Act shifted the burden to the defendant.

10. Under Sandstrom v. Montana, what is the status of a mandatory presumption that shifts the burden of persuasion on an element?

    It violates due process. A jury instruction that the law presumes a person intends the ordinary consequences of voluntary acts is unconstitutional.

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