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Criminal Affirmative Defenses

On January 9, 2013, the United States Supreme Court issued a decision that has profound signifcance to all defendants with defenses to the crime charged. In this case, it was a defendant charged with conspiracy and asserting the defense of withdrawal. In its simplest form, a consipracy is an agreement between two (2) or more people to commit a criminal act and some overt act toward that goal.

A co-conspirator is ordinarily liable for the object of the conspiracy, i.e. each completed crime that was the object or within the scope of the conspiracy. A defense to the underlying crime charged to a co-conspirator is the voluntary withdrawal from the conspiracy as to any completed offenses committed after withdrawal. In order to withdraw from the conspiracy, a defendant must disavow or defeat the purpose of the conspiracy.

The U.S. Supreme Court has now re-affirmed that where Congress is silent as to the allocation of burdens of proof, the defendant bears the burden to prove his affirmative defense of withdrawal from the conspiracy. This means simply that the defendant must prove that he or she took the steps necessary to end his or her agreement to the unlawful goal of the conspiracy. This burden applies to all affirmative defenses, i.e. defenses that imply admission to the crime, but provide for justification or excuse for that criminal act. The prosecution must still disprove defenses that masquerade as trying to negate an element of the crime, since the prosecution must prove the crime beyond a reasonable doubt.

This decision has far reaching signficance to anyone accused of a crime that may have an affirmative defense. The Supreme Court also re-affirmed its position that placing the burden of proof of affirmative defenses upon the defendant does not offend the due process clause of the Fifth Amendment, applicable to restrain the federal government. Placing the burden of proof of an affirmative defense upon an accused likely will not offend the due process clause of the Fourteenth Amendment, applicable to the states. So, a defendant in federal court and, possibly, state court (if its legislature is silent about allocation of burdens of proof for defenses) will have to produce evidence and have the burden to successfully prove every defense in which justification or excuse of the crime, rather than negating an element of the crime is at issue.