Academic

Laudan on Affirmative Defenses

By Lawrence Solum

Larry Laudan (Instituto de Investigaciones Filosoficas and University of Texas School of Law) has posted Legal Epistemology: The Anomaly of Affirmative Defenses on SSRN. Here is the abstract:

This paper explores the tension between the official assignment of the burden of proof to the prosecutor in criminal trials and the fact that most state courts require the defendant to proof any excuse defense he offers to at least a preponderance of the evidence. It likewise argues that the rule in federal courts that defendants propounding a defense must raise a reasonable doubt before the jury can be instructed to consider their defense offends against both the presumption of innocence and the prosecutorial burden of proof.

Full post as published by Legal Theory Blog on August 15, 2008 (boomark / email).