Which Side Bears the Burden in a Defense of Duress?

Youngblood v. West Virginia

When Keshia Dixon was charged with procuring a firearm while under indictment, and making false statements in connection with the acquisition of a firearm, she argued a defense of duress, saying that her boyfriend threatened to kill her or hurt her daughters if she did not buy the guns. This case addresses the question of which side bears the burden of proof when a defense of duress is stated. Dixon argued that she should have the burden of production and that the Government should then have the burden of disproving her assertion because (1) her assertion “controverted the mens rea requirement;” and (2) that placing the burden on the defense is “contrary to modern common law.”

The crimes with which Dixon is charged require that she have acted “knowingly” or “willfully,” the first requirement of which was essentially conceded. The Court rejects the Dixon’s first claim, arguing that a defense of duress, like a defense of necessity (and as an affirmative defense) does not negate the criminal character of the act, but rather precludes criminal liability (think guilty but mentally insane). Therefore the Government is only required to prove that she acted “knowingly” or “willfully,” and not necessarily with a mens rea.

Dixon relies on the Modern Penal Code, and the decision in Davis v. United States which places the burden on the government of proving a defendant’s sanity, to argue against the natural common law rule that “the proponent of an issue bears the burden of persuasion on the factual premises for applying the rule.” In Davis the trial judge instructed the jury that the law “presumes every man is sane, and the burden of showing it is not true is upon the party who asserts it.” In Davis the Court noted that “sound memory and discretion” and “malice aforethought” were essential aspects of the charge of murder, and that if there were reasonable doubt (as in that case where the evidence as to sanity was in equilibrium) the jury was not compelled to convict. The Court cites its reliance on the heightened requirement for a murder charge, and the fact that Congress later codified the insanity defense, requiring that it be proven by the defendant by clear and convincing evidence, as the indication that the Davis rule does not extend as far as Dixon argues. The Court also argues that to overturn the longstanding rule it would have to find consensus within the various federal courts, though it does not say why, except that its absence reflects the absence of “well established” federal law in Dixion’s favor.

Justice Kennedy, concurring, reminds of the presumption that when Congress legislates, it does so with an understanding of the background law, and that if Congress had meant to change or foreclose the defense of duress it would have done so when it passed the law at issue. However, Kennedy admits that “the analysis may come to a different result … for other defenses.”

Justices Alito and Scalia, concurring, disagree with Justice Kennedy’s final assertion. Nor does this opinion agree that Congress implicitly adopts the prevailing rule in the courts. Nor does this opinion accept that Congress delegates this question to the courts themselves.

Justices Breyer and Souter argue that in the absence of any indication of conflicting congressional intent the burden rests on the prosecution. Where the law is silent this opinion would not look to contemporary rulings by the courts, especially where that would lead to different burden allocatins for different statutes. Rather, Breyer argues, silence in the law indicates that Congress intended the courts to develop burden allocations for affirmative defenses in accordance with developing common law. In courts where the burden is placed on the defendant, the dissent notes, it id only done so where the statue requires that the defendant act with “knowledge” but not willfully, intentionally, or voluntarily.