WPIC 14.00 Defenses—Introduction

Burden of proof. State v. Acosta, 101 Wn.2d 612, 683 P.2d 1069 (1984) and State v. McCullum, 98 Wn.2d 484, 656 P.2d 1064 (1983), provide a two-tiered test to evaluate whether the State or a defendant has the ultimate burden of proof as to a defense. First, the court must determine whether the defense negates an element of the crime. Under the due process provisions of the Fifth and Fourteenth Amendments of the United States Constitution, the State must prove every element of an offense beyond a reasonable doubt. If a statute indicates an intent to include absence of a defense as an element of the offense, or the defense negates one or more elements of the offense, the State has a constitutional burden to prove the absence of the defense beyond a reasonable doubt. Patterson v. New York, 432 U.S. 197, 214–15, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). Accord, State v. W.R., Jr., 181 Wn.2d 757, 336 P.3d 1134 (2014); State v. Gregory, 158 Wn.2d 759, 147 P.3d 1201 (2006); State v. Lively, 130 Wn.2d 1, 10–11, 921 P.2d 1035 (1996); State v. Ager, 128 Wn.2d 85, 904 P.2d 715 (1995); State v. Riker, 123 Wn.2d 351, 367–68, 869 P.2d 43 (1994); State v. Arth, 121 Wn.App. 205, 212 n.15, 87 P.3d 1206 (2004).

Second, if there is no due process requirement as to allocation of burden of proof, the court must determine whether the Legislature intended, nevertheless, to place the ultimate burden of persuasion on the State to prove the absence of the defense beyond a reasonable doubt. If the statute does not expressly assign the burden to either the State or the defendant, and provides no indication of the Legislature's intent to overrule common law, the statute will be presumed to follow judicial precedent. State v. McCullum, 98 Wn.2d at 493. In this situation, it is constitutional to require the defendant to prove the defense by a preponderance of the evidence. See State v. Riker, 123 Wn.2d at 367–68 (distinguishing the “affirmative defenses” which “normally … must be proved by the defendant by a preponderance of the evidence,” from self-defense or alibi defenses). “The duress defense [at issue in the case], unlike self-defense or alibi, does not negate an element of an offense, but pardons the conduct even though it violates the literal language of the law.” State v. Riker, 123 Wn.2d at 368.

Defendant's objection to instructing on an affirmative defense. A court must not instruct the jury on an affirmative defense over the defendant's objection. State v. Coristine, 177 Wn.2d 370, 376, 300 P.3d 400 (2013) (giving an instruction in these circumstances violates the 6^th Amendment to the United States Constitution). See also State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013).