Commonwealth v. Sojourner

SPAETH, Judge,

concurring:

I agree with the majority’s solution to the issue of the burden of proving nonlicensure under the drug act. That said, I submit that the terminology in this area of the law is confusing, and that the majority’s opinion does little to resolve the confusion.

The majority opinion concludes — correctly, I believe — that nonlicensure is an element of the offense. Thus there is no question that under Patterson v. New York, 432 U.S. 197 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977), the Commonwealth was required to prove nonlicensure beyond a reasonable doubt. I *508 submit that that is all the light Patterson sheds on the problem. Our question is: May the Commonwealth rest on a sort of presumption of nonlicensure that only disappears once the defendant submits some proof of licensure — in other words, may the defendant be forced to submit enough evidence of nonlicensure to make it an issue before the Commonwealth is required to prove nonlicensure beyond a reasonable doubt?

In answering this question, the majority relies on Patterson . But Patterson is an “affirmative defense case,” not an “element of the crime case.” Moreover, the majority misreads Patterson . The Court there did not hold that “the burden of going forward with the evidence of all the elements of a criminal offense need not rest on the Commonwealth from the outset.” Majority op. at 1113. Rather, the Court was mainly concerned with the burden of persuasion, not with the burden of production. It held that a state could label something an affirmative defense and then require a defendant to prove the defense by a preponderance of the evidence. The Court said that the Constitution does not require a state to disprove an affirmative defense beyond a reasonable doubt — although the majority opinion acknowledged that “as a matter of policy” (emphasis supplied), the Model Penal Code would require the state to disprove “most affirmative defenses.” Id., 432 U.S. at 209, n. 11 , 97 S.Ct. 2319 .

The majority also relies on the Model Penal Code. I cannot myself get any guidance from the Code. Under it, it appears, nonlicensure would be labelled an affirmative defense, see § 1.13(3)(d), or possibly an “element” — but not a “material element” — of the offense, see § 1.14(9)(c) & comment at 118. If anyone can find his way out of that thicket, I ask him to lend me his compass.

The important point is that the Commonwealth has the burden of proving nonlicensure beyond a reasonable doubt. Beyond that, I should dispense with labels and simply hold that even though the Commonwealth must always prove the elements of a crime beyond a reasonable doubt, sometimes, *509 with respect to a given element, the defendant may be required to carry the burden of production so as to raise the issue initially. In Patterson , Mr. Justice POWELL made this point succinctly. 432 U.S. at 230-31 , 97 S.Ct. 2338 (dissenting opinion) (quoted by the majority here, at 1113). In answer to the question that would be raised by such a holding — when does this burden of production shift to the defendant and when not? — I should adopt the Model Penal Code’s language: *

No single principle can be conscripted to explain when these shifts of burden to defendants are defensible, even if the burden goes no further than to call for the production of some evidence. Neither the logical point that the prosecution would be called upon to prove a negative, nor the grammatical point that the defense rests on an exception or proviso divorced from the definition of the crime is potently persuasive, although both points have been invoked. See e. g. Rossi v. United States, 289 U.S. 89 [ 53 S.Ct. 532 , 77 L.Ed. 1051 ] (1933); United States v. Fleischman, 339 U.S. 349, 360-363 [, 70 S.Ct. 739 , 94 L.Ed. 906 ] (1950); State v. McLean, 157 Minn. 359 [ 196 N.W. 278 ] (1923). What is involved seems rather a more subtle balance which acknowledges that a defendant ought not be required to defend until some solid substance is presented to support the accusation but, beyond this, perceives a point where need for narrowing the issues, coupled with the relative accessibility of evidence to the defendant, warrants calling upon him to present his defensive claim. No doubt this point is reached more quickly if, given the facts the prosecution must establish, the normal probabilities are against the defense, but this is hardly an essential factor. Given the mere fact of an intentional homicide, no one can estimate the probability that it was or was not committed in self-defense. The point is rather than purposeful homicide is an event of such gravity to society, and the basis for a claim of self-defense is so *510 specially within the cognizance of the defendant, that it is fair to call on him to offer evidence if the defense is claimed. This is in essence the classic analysis by Justice Cardozo in Morrison v. California, 291 U.S. 82, 88-90 [, 54 S.Ct. 281 , 78 L.Ed. 664 ] (1934), although the statute there involved seemingly also shifted burden of persuasion. See also Williams v. United States, [ 78 U.S.App.D.C. 147 ] 138 F.2d 81 (D.C.Cir. 1943) (justification for abortion). So long as this criterion is satisfied, it is submitted that no constitutional objection is presented, though language in Tot v. United States, 319 U.S. 463, 469 [, 63 S.Ct. 1241 , 87 L.Ed. 504 ] (1943), but not the decision, must be distinguished.

Model Penal Code, Comments, § 1.13 at 110 (Tent. Draft # 4, 1955).

This language is used in the context of “affirmative defenses,” in Model Penal Code terminology.