Utah’s Affirmative Defense Statute and the Burden of Proof
Utah Code section 76-1-502 states that evidence of an affirmative defense (such as self defense) must be “presented by the defendant.” This statute is indirect conflict with important constitutional protections (guaranteed by both the Utah State Constitution and the U.S. Constitution) relating to the prosecution’s burden of proof and the fundamental presumption of innocence required by due process.
Good criminal defense attorneys should be AWARE of this statute. But they must also understand and realize that it is in direct conflict with a client’s constitutional rights.
Outdated and Incorrect – Utah Code 76-1-504
Section 504 was enacted as part of the legislature’s 1973 overhaul of Utah’s criminal code. It has not been amended, revised, or updated since that time.
Federal courts and Utah’s appellate courts have long held that the government carries the burden of proof in every criminal prosecution. The burden of proof includes both a burden of production and a burden of persuasion.
Burden of Production – What’s the evidence?
The burden of production requires that the government produce (i.e., present, not manufacture) actual evidence at trial. Such evidence can include physical objects or results of scientific testing or analysis. But most evidence in most criminal trials consists simply of the testimony (oral statements in court) of witnesses who saw things happen or have other direct knowledge of facts relevant to the case.
Burden of Persuasion – Is it persuasive?
In addition to its obligation to present actual evidence at trial, the prosecution is also required to persuade (i.e. convince) the jury (or judge in a bench trial) that the person charged did in fact commit the crime charged.
Elements of the Charge – Production and Persuasion
It is commonly understood that the prosecution must present evidence of each and every element of the offense charged. But it is not always sufficient to prove that specific actions were taken or that the alleged conduct did in fact occur.
The prosecution must also prove that the actions or conduct were unlawful. In other words, the prosecutor to prove that the conduct actually violated the law — that what the person charged did was actually illegal. The prosecutor does not have to affirmatively disprove all possible defense
Example: Assault and Self Defense
The Utah criminal code establishes the crime of assault as including elements that require proof that the defendant used or attempted to use force or the threat of immediate force to inflict “bodily injury” or that created “a substantial risk of bodily injury.” But proof of these facts is not, by itself, enough to support a conviction.
Utah’s assault statute also requires proof that the defendant acted “with unlawful force or violence.” The term “unlawful” here is critical. Actions taken in self defense often involve the use of force or violence, or a threat of force, for the purpose of defending against another person’s threatened or actual use of force.
The reasonable use of force for the purpose of self defense or to defend another person is not “unlawful.” Therefore, such use of force would not, by itself, support a conviction for assault.
Evidence from EITHER the Defense or the Prosecution
The prosecution has the burden to present evidence of each element. A defendant also has the right to present evidence at trial. But the defendant’s RIGHT to present evidence does not create a duty or obligation for the defendant to present evidence.
Courts consistently hold that it does not matter who presents the evidence. A witness called by the prosecutor or a witness called by the defense should both be treated the same. It does not matter which side asked the question that elicited the testimony.
Evidence is evidence. If there is evidence that would allow a reasonable determination that the defendant was acting in self defense, then the prosecutor has the burden to prove that the defendant was NOT acting in self defense.