CRS Annotated Constitution

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Proof, Burden of Proof, and Presumptions.—The due process clauses of the Fifth and Fourteenth Amendments “[protect] the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”83 “The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration of our criminal law.”’84 In many past cases, this standard was assumed to be the required one,85 but because it was so widely accepted only recently has the Court had the opportunity to pronounce it guaranteed by due process.86 The presumption of inno[p.1762]cence is valuable in assuring defendants a fair trial,87 and it operates to ensure that the jury considers the case solely on the evidence.88

The Court has long held it would set aside under the due process clause convictions that are supported by no evidence at all,89 but Winship necessitated a reconsideration of whether it should in reviewing state cases weigh the sufficiency of the evidence. Thus, in Jackson v. Virginia,90 it held that federal courts, on direct appeal of federal convictions or collateral review of state convictions, must satisfy themselves whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. The question the reviewing court is to ask itself is not whether it believes the evidence at the trial established guilt beyond a reasonable doubt, but whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.91

Inasmuch as due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged, the Court held in Mullaney v. Wilbur92 that it was a denial of this constitutional guarantee to require a defendant charged with murder to prove that he acted “in the heat of passion on sudden provocation” in order to reduce the homicide to manslaughter. The Court indicated that a balancing of interests test was to be employed to determine when the due process clause re[p.1763]quired the prosecution to carry the burden and when some part of the burden might be shifted to the defendant, but the decision called into question the practice in many States under which some burdens of persuasion were borne by the defense, and raised the prospect that the prosecution must bear all burdens of persuasion, a significant and weighty task given the large numbers of affirmative defenses.

But the Court soon summarily rejected the argument that Mullaney means that the prosecution must negate the insanity defense,93 and in full–scale consideration upheld a state statute that provided that an intentional killing is murder but permitted the defendant to assert “extreme emotional disturbance” as an affirmative defense which, if proved by the defense by a preponderance of the evidence, would reduce the murder offense to manslaughter.94 According to the Court, the constitutional deficiency in Mullaney was that the statute made malice an element of the offense but permitted malice to be presumed upon proof of the other elements and required the defendant to prove the absence of malice. In Patterson the statute obligated the State to prove each element of the offense (the death, the intent to kill, and the causation) beyond a reasonable doubt, but allowed the defendant to present an affirmative defense that would reduce the degree of the offense, and as to which the defendant bears the burden of persuasion by a preponderance of the evidence. The decisive issue, then, was whether the statute required the state to prove beyond a reasonable doubt each element of the offense. So defined, the distinction and the constitutional mandate are formalistic, and the legislature can shift burdens of persuasion between prosecution and defense easily through the statutory definitions of the offenses.95 Also formalistic is the[p.1764]distinction between elements of the crime and sentencing factors; a state may treat as a sentencing consideration provable by a preponderance of the evidence the fact that the defendant “visibly possessed a firearm” during commission of the offense.96

Supplement: [Pp. 1763–64, delete last sentence and accompanying footnote (96) of paragraph beginning on P. 1763 and substitute the following:]

Another important distinction which can substantially affect a prosecutor’s burden is whether a fact to be established is an element of a crime or instead is a sentencing factor. While a criminal conviction is generally established by a jury using the “beyond a reasonable doubt” standard, sentencing factors are generally evaluated by a judge using few evidentiary rules and under the more lenient “preponderance of the evidence” standard. The Court has taken a formalistic approach to this issue, allowing States to essentially designate which facts fall under which of these two categories. For instance, the Court has held that whether a defendant “visibly possessed a gun” during a crime may be designated by a State as a sentencing factor, and determined by a judge based on the preponderance of evidence.29 Although the Court has generally deferred to the legislature’s characterizations in this area, it limited this principle in Apprendi v. New Jersey by holding that a sentencing factor cannot be used to increase the maximum penalty imposed for the underlying crime.30 This decision, however, arguably conflicts with related case law regarding, for instance, the use of aggravating sentencing factors by judges in imposing capital punishment,31 and is subject to at least one exception.32 Further, the decision might be evaded by legislatures revising criminal provisions to increase maximum penalties, and then providing for mitigating factors within the newly established sentencing range.

Quite closely related is the issue of statutory presumptions; these generally provide for the proof of the presumed fact, an element of a crime, by the establishment of another fact, the basic fact.97 In Tot v. United States,98 the Court held that a statutory presumption was valid under the due process clause if it met a “rational connection” test. “Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from the proof of the other is arbitrary because of lack of connection between the two in common experience.” In Leary v. United States,99 however, the due process test was stiffened to require that for such a “rational connection” to exist, it must “at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” Thus, a provision which permitted a jury to infer from defendant’s possession of marijuana his knowledge of its illegal importation was voided. A lengthy canvass of factual materials established to the Court’s satisfaction that while the greater part of marijuana consumed here is of foreign origin there was still a good amount produced domestically and there was thus no way to assure that the majority of those possessing marijuana have any reason to know their marijuana is imported.100 The Court left open the question whether a presumption which survived the “rational connection” test “must also satisfy the criminal ‘reasonable doubt’[p.1765]standard if proof of the crime charged or an essential element thereof depends upon its use.”101

In its most recent case, a closely divided Court drew a distinction between mandatory presumptions, which a jury must accept, and permissive presumptions, which may be presented to the jury as part of all the evidence to be considered. With respect to mandatory presumptions, “since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption, unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.” But, with respect to permissive presumptions, “the prosecution may rely on all of the evidence in the record to meet the reasonable doubt standard. There is no more reason to require a permissive statutory presumption to meet a reasonable–doubt standard before it may be permitted to play any part in a trial than there is to require that degree of probative force for other relevant evidence before it may be admitted.”102 Thus, because the jury was told it had to believe in defendants’ guilt beyond a reasonable doubt and that it could consider the inference, due process was not violated by the application of the statutory presumption that the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle.103


83 In re Winship, 397 U.S. 358, 364 (1970) .

Supplement: [P. 1761, add to n.83:]

See also Sullivan v. Louisiana, 508 U.S. 275 (1993) (Sixth Amendment guarantee of trial by jury requires a jury verdict of guilty beyond a reasonable doubt).

84 Id. at 363 (quoting Coffin v. United States, 156 U.S. 432, 453 (1895) ). Justice Harlan’s Winship concurrence, id. at 368, proceeded on the basis that inasmuch as there is likelihood of error in any system of reconstructing past events, the error of convicting the innocent should be reduced to the greatest extent possible through the use of the reasonable doubt standard.
85 Miles v. United States, 103 U.S. 304, 312 (1881) ; Davis v. United States, 160 U.S. 469, 488 (1895) ; Holt v. United States, 218 U.S. 245, 253 (1910) ; Speiser v. Randall, 357 U.S. 513, 525–26 (1958) .
86 In addition to Winship, see also Estelle v. Williams, 425 U.S. 501, 503 (1976) ; Henderson v. Kibbe, 431 U.S. 145, 153 (1977) ; Ulster County Court v. Allen, 442 U.S. 140, 156 (1979) ; Sandstorm v. Montana, 442 U.S. 510, 520–24 (1979) . On the interrelated concepts of the burden of the prosecution to prove guilt beyond a reasonable doubt and defendant’s entitlement to a presumption of innocence, see Taylor v. Kentucky, 436 U.S. 478, 483–86 (1978) , and Kentucky v. Whorton, 441 U.S. 786 (1979) .
87 E.g., Deutch v. United States, 367 U.S. 456, 471 (1961) . See also Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam) (jury instruction that explains “reasonable doubt” as doubt that would give rise to a “grave uncertainty,” as equivalent to a “substantial doubt,” and as requiring “a moral certainty,” suggests a higher degree of certainty than is required for acquittal, and therefore violates the Due Process Clause).

Supplement: [P. 1762, add to n.87:]

But see Victor v. Nebraska, 511 U.S. 1 (1994) (considered as a whole, jury instructions that define “reasonable doubt” as requiring a “moral certainty” or as equivalent to “substantial doubt” did not violate due process because other clarifying language was included.)

88 Holt v. United States, 218 U.S. 245 (1910) ; Agnew v. United States, 165 U.S. 36 (1897) . These cases overturned Coffin v. United States, 156 U.S. 432, 460 (1895) , in which the Court held that the presumption of innocence was evidence from which the jury could find a reasonable doubt.
89 Thompson v. City of Louisville, 362 U.S. 199 (1960) ; Garner v. Louisiana, 368 U.S. 157 (1961) ; Taylor v. Louisiana, 370 U.S. 154 (1962) ; Barr v. City of Columbia, 378 U.S. 146 (1964) ; Johnson v. Florida, 391 U.S. 596 (1968) . See also Chessman v. Teets, 354 U.S. 156 (1957) .
90 443 U.S. 307 (1979) .
91 Id. at 316, 318–19. On a somewhat related point, the Court has ruled that a general guilty verdict on a multiple–object conspiracy need not be set aside if the evidence is inadequate to support conviction as to one of the objects of the conspiracy, but is adequate to support conviction as to another. Griffin v. United States, 112 U.S. 466 (1991) .
92 421 U.S. 684 (1975) . See also Sandstrom v. Montana, 442 U.S. 510, 520–24 (1979) .
93 Rivera v. Delaware, 429 U.S. 877 (1976) , dismissing as not presenting a substantial federal question an appeal from a holding that Mullaney did not prevent a State from placing on the defendant the burden of proving insanity by a preponderance of the evidence. See Patterson v. New York, 432 U.S. 197, 202–05 (1977) (explaining the import of Rivera). Justice Rehnquist and Chief Justice Burger concurring in Mullaney, 421U.S. at 704, 705 421U.S. at 704, 705, had argued that the case did not require any reconsideration of the holding in Leland v. Oregon, 343 U.S. 790 (1952) , that the defense may be required to prove insanity beyond a reasonable doubt.
94 Patterson v. New York, 432 U.S. 197 (1977) .
95 Dissenting in Patterson, Justice Powell argued that the two statutes were functional equivalents that should be treated alike constitutionally. He would hold that as to those facts which historically have made a substantial difference in the punishment and stigma flowing from a criminal act the State always bears the burden of persuasion but that new affirmative defenses may be created and the burden of establishing them placed on the defendant. Id. at 216. Patterson was followed in Martin v. Ohio, 480 U.S. 228 (1987) (state need not disprove defendant acted in self–defense based on honest belief she was in imminent danger, when offense is aggravated murder, an element of which is “prior calculation and design”). Justice Powell, again dissenting, urged a distinction between defenses that negate an element of the crime and those that do not. Id. at 236, 240.
96 McMillan v. Pennsylvania, 477 U.S. 79 (1986) (the finding increased the minimum sentence that could be imposed but did not affect the maximum sentence).
97 See, e.g., Yee Hem v. United States, 268 U.S. 178 (1925) (upholding statute that proscribed possession of smoking opium that had been illegally imported and authorized jury to presume illegal importation from fact of possession); Manley v. Georgia, 279 U.S. 1 (1929) (invalidating statutory presumption that every insolvency of a bank shall be deemed fraudulent).
98 319 U.S. 463, 467 (1943) (voiding presumption of transportation of firearm in interstate commerce from possession). Compare United States v. Gainey, 380 U.S. 63 (1965) (upholding presumption from presence at site of illegal still that defendant was “carrying on” or aiding in “carrying on” its operation), with United States v. Romano, 382 U.S. 136 (1965) (voiding presumption from presence at site of illegal still that defendant had possession, custody, or control of still).
99 395 U.S. 6, 36 (1969) .
100 Id. at 37–54. While some of the reasoning in Yee Hem, supra n.97, was disapproved, it was factually distinguished as involving users of “hard” narcotics.
101 Id. at 36 n.64. The matter was also left open in Turner v. United States, 396 U.S. 398 (1970) (judged by either “rational connection” or “reasonable doubt,” a presumption that the possessor of heroin knew it was illegally imported was valid, but the same presumption with regard to cocaine was invalid under the “rational connection” test because a great deal of the substance was produced domestically), and in Barnes v. United States, 412 U.S. 837 (1973) (under either test a presumption that possession of recently stolen property, if not satisfactorily explained, is grounds for inferring possessor knew it was stolen satisfies due process).
102 Ulster County Court v. Allen, 442 U.S. 140, 166–67 (1979) .
103 The majority thought that possession was more likely than not the case from the circumstances, while the four dissenters disagreed. Id. at 168 (Justices Powell, Brennan, Stewart, and Marshall). See also Estelle v. McGuire, 112 Ct. 475 (1991) (upholding a jury instruction that, to dissenting Justices O’Connor and Stevens, id. at 484, seemed to direct the jury to draw the inference that evidence that a child had been “battered” in the past meant that the defendant, the child’s father, had necessarily done the battering).

Supplement Footnotes

29 McMillan v. Pennsylvania, 477 U.S. 79 (1986) .
30 120 S. Ct. 2348, 2362–63 (2000) (interpreting New Jersey’s “hate crime” law).
31 Walton v. Arizona, 497 U.S. 639 (1990) .
32 This limiting principle does not apply to sentencing enhancements based on recidivism. Apprendi, 120 S. Ct. at 2361–62. As enhancement of sentences for repeat offenders is traditionally considered a part of sentencing, establishing the existence of previous valid convictions may be made by a judge, despite its resulting in a significant increase in the maximum sentence available. Almendarez– Torres v. United States, 523 U.S. 224 (1998) (deported alien reentering the United States subject to a maximum sentence of two years, but upon proof of felony record, is subject to a maximum of 20 years). See also Parke v. Raley, 506 U.S. 20 (1992) (where prosecutor has burden of establishing a prior conviction, a defendant can be required to bear the burden of challenging the validity of such a conviction).
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