Appealed from: United States Court of Appeals, Fifth Circuit
Oral argument: April 25, 2006
criminal law, duress, burden of proof, Battered woman’s syndrome, FIFTH AMENDMENT, DUE PROCESS CLAUSE
The issue before the Court is whether a criminal defendant raising an affirmative defense of duress must bear the burden of persuasion and prove duress by a preponderance of the evidence, or, once the defendant has raised the defense, whether the government must bear the burden and prove beyond a reasonable doubt that duress did not exist. Petitioner Dixon argues that the government should bear the burden of persuasion because the duress defense negates the mens rea, or guilty mind, element of the crime, and under the Due Process Clause of the Fifth Amendment the government must prove all elements of a crime beyond a reasonable doubt, including disproving any defenses.
Where a criminal defendant raises a duress defense, whether the burden of persuasion should be on the government to prove beyond a reasonable doubt that the defendant was not under duress, or upon the defendant to prove duress by a preponderance of the evidence?
Where a defendant claims duress as a defense to a criminal charge, which side must prove the duress or its absence, and to what standard must this proof be held?
In early January, 2003, Keshia Dixon illegally bought seven guns at two Dallas gun by providing false information to gun dealers. Brief for the Petitioner (“Br. for Pet’r”) at 6 (As of this writing Petitioner Dixon has not made the merit brief accessible to the general public online. Check the ABA website to view the brief once it has been posted). Dixon alleges that she purchased the guns for her boyfriend, Thomas Earl Wright, because he threatened to kill her and her three daughters if she did not buy him. Br. for Pet’r at 6-7. Thomas Wright is a convicted felon, so he was unable to purchase the guns for himself. Id. Dixon further alleges that she was the victim of a continual pattern of abuse, including four or five beatings administered on the week of the gun purchases, although she admitted that she had never sought help. Br. for Pet’r at 7-8. At trial, Dixon was charged with lying to buy a firearm and receiving guns while under indictment (for a separate, prior charge). Br. for Pet’r at 3. In her defense, Dixon raised the affirmative defense of duress, which exonerates a defendant of guilt for certain crimes if he or she can show that coerced into committing the crime under the threat of immediate harm. See Br. for Pet’r at 11. Under the established Fifth Circuit rule, the defendant bears the burden of proof for this defense, and “must prove each element of the defense by a preponderance of the evidence.” United States v. Dixon, 5th Cir. (2005) at 10 (quoting United States v. Willis, 38 F.3d 170, at 179). Dixon was ultimately convicted under this rule in the trial court. Id. at 3.
This burden of proof rule sits at the heart of Dixon’s Supreme Court case—On appeal, Dixon acknowledged the established nature of the Fifth Circuit’s rule, but contended that the Fifth Circuit should reconsider its rule both in light of the fact that their rule is in a minority among the circuits, and in light of the argument that a duress defense negates the mens rea, or intent, element of a crime and thus extends the prosecution’s constitutional burden of proving guilt beyond a reasonable doubt to duress defenses. Br. for Pet’r at 13. The majority rule followed in the Second, Sixth, Seventh, Eighth and Tenth Circuits states that while the burden to produce evidence of duress lies on the defendant, the burden of persuasion to disprove a duress defense lies on the prosecution. Br. for Pet’r at 25. The Fifth Circuit dismissed Dixon’s suggestion that they adopt the majority rule, relying instead on their own established law. United States v. Dixon, 5th Cir. (2005) at 10. The Supreme Court accepted certiorari to resolve the specific legal issue of the conflicting duress rules among the circuit courts. See Questions Presented.
The duress defense claimed in this case is not the prototypical “gun to the head” situation as often seen in movies, but is an example of the far more subtle “battered woman syndrome” (“BWS”) variety. One essential component of a duress defense is the “immediacy” requirement, which requires that for a defendant to claim duress, he or she must be under immediate threat of death or bodily injury. In BWS cases, the woman is usually under the influence of an abusive boyfriend or husband who, while posing no literal immediate threat to the woman, can fulfill the immediacy requirement of duress through a pattern of putting the woman’s life constantly at risk through regular beatings or abuse. While BWS is not directly in issue in this case, the result of Dixon v. the United States will indubitably be of great interest to BWS victims and support groups. If the burden of persuasion is shifted to the prosecution, then there will be far more room for battered women to escape liability for criminal acts forced upon them by abusive men. It should be noted, however, that the duress defense is typically not available in murder or assault with intent to kill cases, meaning that there is no danger of defendants getting away with the most severe crimes even under this more lenient rule.
Some commentators, however, have endorsed the Fifth Circuit’s skepticism with regards to women claiming duress in BWS cases. Tough Days in Court for Battered Woman Syndrome, Rukhaya Alikhan, available at <http://docket.medill.northwestern.edu/archives/003461.php>. These commentators, including psychologists and law professors, have theorized that if it is made easier for battered women to escape liability for criminal acts, an incentive will be created for women to kill their abusers or commit other crimes. Id. If battered women are indeed given a freer hand to escape their abusers via criminal acts or to escape liability for criminal acts forced upon them, then they might be less inclined to seek relief through legal means, such as by seeking help before being forced to commit a crime, or by seeking a legal means of escape.
Ultimately, the effects of a unified burden placement rule among the circuits will extend far beyond BWS cases. In jurisdictions where the burden of proof of duress shifts from the defendant to the prosecution, the prosecution will have a much tougher job of convicting defendants who raise duress defenses. Although most normal criminal cases will likely be unaffected, cases in which the evidence could point either way may well end up with an opposite result as compared to before this case.
If the Supreme Court rules in favor of the United States, and establishes a unified rule based on the Fifth Circuit’s minority rule, the National Association of Criminal Defense Lawyers (“NACDL”) and the National Clearinghouse for the Defense of Battered Women (“NCDBW”) suggest in their amicus brief that the flexibility of the Fifth Circuit’s analysis will lead to inconsistent and unreliable jury verdicts. Brief of the National Association of Criminal Defense Lawyers and The National Clearinghouse for the Defense of Battered Women as Amicus Curiae in Support of Petitioner at 4. Under the Fifth Circuit’s rule, NACDL and NCDBW claim, courts may subject duress defenses to two differing burdens of proof depending on whether the court characterizes the duress defense as one which negates an element of the crime, or as one which merely excuses the crime. Id. In the former case, the burden of proof remains with the prosecution, but in the latter, the burden of proof is shifted to the defendant. Id. In the view of the NACDL and NCDBW, the flexibility of these different burdens of proof are vulnerable to abuse by the prosecution if the prosecutors choose to charge defendants with crimes which courts decide only allow an excuse duress defense. Id. If the NACDL and NCDBW’s fears are bourn out, then a ruling in favor the Fifth Circuit’s dual burden rule will result a gutting of the application of the more defendant-friendly negation duress defense. A ruling in favor of the United States would thus result in an inflexible and strict rule which might in practice restrict defendant’s constitutional right to be proven guilty beyond a reasonable doubt.
The United States raises a similar practical argument with regards to Petitioner Dixon’s proposed rule whereby the government bears the burden of proving that there was no duress beyond a reasonable doubt. Since a third party’s coercion of a defendant to commit a crime will most likely itself constitute a criminal offense, the person alleged to have made the threat can assert his Fifth Amendment right against self-incrimination and freeze a prosecution’s case in its tracks. An uncooperative defendant could thus plead duress and the government would have a serious disadvantage when collecting evidence to defeat the defendant’s duress defense. Such a loophole could increase the number of false duress claims made in criminal defenses, thus possibly resulting in unjust outcomes and a court system burdened with weak duress claims.
The issue before the Court is whether a criminal defendant raising an affirmative defense of duress must bear the burden of persuasion and prove duress by a preponderance of the evidence, or whether, once the defendant has raised the defense, the government must bear the burden and prove beyond a reasonable doubt that duress did not exist. Dixon argues that the government should bear the burden of persuasion because the duress defense negates the mens rea, or guilty mind, element of the crime, and under the Due Process Clause of the Fifth Amendment the government must prove all elements of a crime beyond a reasonable doubt, including disproving any defenses. Brief for the Petitioner (“Br. for Pet’r”) at 15-16 (As of this writing Petitioner Dixon has not made the merit brief accessible to the general public online. Check the ABA website to view the brief once it has been posted). Placing the burden of persuasion on the government is consistent with the modern common law approach to the duress defense, which has developed in such a way that once a defendant has presented sufficient evidence in support of a duress defense, the burden shifts to the government to prove beyond a reasonable doubt that duress did not exist. Br. for Pet’r at 14. The primary authority for Dixon’s argument is Davis v. United States, 160 U.S. 469 (1895), in which the Court held that once a defendant has produced evidence of insanity, an affirmative defense, the government must then prove that the defense did not create a reasonable doubt, since the insanity defense address the mens rea element of the charged crime. Id. at 20. Dixon argues that Davis has been a very influential case on federal affirmative defense law, with many circuits shifting the burden of persuasion to the government for insanity and other defenses such as self-defense and duress. Id. at 22-23. Although Dixon acknowledges that Davis is not a constitutional ruling, meaning that it did not establish a constitutional rule shifting the burden of persuasion to the government, and additionally acknowledges that Congress has superseded the holding in Davis by statute such that a defendant now bears the burden of proving insanity by clear and convincing evidence, she argues nonetheless that the Court has continued to adhere to the fundamental principles of Davis and should not change them now. Id. at 23. Ultimately, Dixon argues that the majority of federal and state courts have followed Davis and have shifted the burden of persuasion to the government to prove beyond a reasonable doubt that duress did not exist. The Court should overturn the Fifth Circuit and establish a rule that under the Due Process Clause the burden of persuasion lies with the government.
In addition, Dixon argues that practical considerations weigh heavily in favor of placing the burden of persuasion on the government. Id. at 31. There will be too many different standards for the jury to remember if the Court places the burden on the defendant, as the defendant will have to prove by a preponderance of the evidence that duress did exist, while the government will have to prove beyond a reasonable doubt that the defendant met all the elements of the offense. Id. at 31. Dixon argues that the risk of the jury convicting the defendant based on the failure of defense evidence, as opposed to the strength of the government’s case, is simply too great, and requires a single standard of beyond a reasonable doubt that the government must satisfy. Id.
The government contends that, in light of the common law history of the duress developments and modern developments in federal law, the defendant who raises an affirmative defense of duress should bear the burden of proving by a preponderance of the evidence that duress did exist. Brief for the United States at 10. At common law, duress was a disfavored defense due to concerns about abuse and false claims. Id. at 17. Courts frequently assigned the burden of proof to the party seeking to establish the less likely or more unusual events. Id. at 11. Thus, there were many restrictions on the duress defense, including placing the burden of persuasion on the defendant. Id. at 18. In addition to the historical development of the duress defense, the government argues that developments under modern federal law suggest that the burden should remain with the defendant. Id. at 20. The primary focus of the government’s argument is Dixon’s reliance on Davis v. United States. As Dixon conceded, Congress has rejected Davis by statute, placing the burden on defendants to prove insanity by clear and convincing evidence. Id. at 26-27. Although this does not speak directly to the burden of proof for affirmative defenses, Congressional intent is very significant because Congress has plenary authority to create affirmative defenses, and it has neither adopted a duress defense nor placed the burden of persuasion on the government. Id. at 27. Instead, many of the affirmative defenses created by Congress place the burden on the defendants. Id. at 29.
The government also distinguishes the insanity defense involved in Davis from the duress defense asserted by Dixon. Unlike an insanity defense, a duress defense does not suggest that the defendant lacked the requisite mens rea for the charged defense. Id. at 30. In United States v. Bailey, 444 U.S. 394 (1980), the Court held that the duress defense excused criminal conduct even though the necessary mens rea was present. Id. at 31. In Dixon’s case, the mens rea requirement of the offense required that she acted “knowingly,” meaning that she had knowledge of the facts that constituted the offense. Id. at 32. Under Bailey, even if she committed the illegal acts under threat of force, that would not change her knowledge of the facts. Id. Dixon admitted that she knew at the time she purchased the firearms that her conduct was unlawful, but under her duress defense she claims she was forced to do it. Id. Thus, Dixon is incorrect that her duress defense, like the insanity defense in Davis, negates the mens rea element of the crime. Since this defense does not go to the mens rea element of the offense, the government does not have to prove beyond a reasonable doubt that duress does not exist; rather, the defendant must prove by a preponderance of the evidence that duress did exist.
Several practical considerations also warrant placing the burden of persuasion on the defendant. Id. at 20. First, the defendant will likely have more access to information supporting the duress defense. Id. Many of the events that provide the basis for the duress claim occurred before the events that caused the government to become involved with the case, and thus it may be more fair to place the burden on the party with easier access to the necessary information. Id. Second, in most cases involving a duress defense, the government will be unable to call as a witness the person most likely to have information about the events leading to the claim, the person alleged to have coerced the defendant into committing the illegal act. Id. at 21. Because most of the coercive conduct involved in a duress defense constitutes a criminal defense, the person alleged to have made the threat will assert his Fifth Amendment right against self-incrimination. Id. Once the person alleges his Fifth Amendment rights, the government will not be able to question him about the events surrounding the duress defense, making it nearly impossible for them to prove beyond a reasonable doubt that duress did not exist. Id. at 21-22. Third, placing the burden on the defendant will prevent false or frivolous affirmative defenses such as duress. Id. at 23. Since the duress defense excuses a defendant from criminal liability, the threat of fraudulent claims and the potential for abuse require courts to establish strict rules for its use, including requiring the defendant to prove that duress existed. Id. Finally, requiring the government to prove that duress existed places presents high social costs, as the reasonable doubt standard would overprotect defendants while jeopardizing important interests in punishing those who violate the law. Id.
It is unclear whether the Supreme Court will follow the lead of the majority of the circuit courts and impose a rule which places the burden of proof on the government to disprove duress when a defendant has produced evidence showing duress. What is clear, however, is that the United States has a compelling case in its citation of the practical consequences of such a rule; the government’s fear that duress defenses could be abused by defendants to escape liability is altogether unpalatable and may weigh heavily in the Court’s deliberations on this case. Although Petitioner’s claim that battered women may be harmed by a stricter rule which places both the burden of production and the burden of proof on the defendant is also highly compelling, given the courts’ history of suspicion of battering claims, it seems unlikely that the court will be entirely sympathetic to this practical consideration.
- Law about... Criminal law