Trial

Question 1

Can the burden shift to the defendant to prove what could be an affirmative defense but is actually an element of the crime?

Answer 1

The government may not require a person on whom a criminal penalty would be imposed to disprove an element of the offense. If the ability to make child support payments is an element of criminal contempt, rather than the inability to pay being an affirmative defense, the state cannot require the father to prove his inability to pay. Rather, the state is required to prove the father’s ability beyond a reasonable doubt.

Question 2

Does a defendant need to prove their alibi?

Answer 2

Due process requires the prosecution to prove all elements of a crime beyond a reasonable doubt. Because alibi is not a traditional defense, but rather negates an essential element of the crime (the defendant’s actual commission thereof), due process precludes imposing upon a defendant the burden of proving alibi

Question 3

When does double jeopardy attach?

Answer 3

For double jeopardy purposes, jeopardy does not attach until trial, when the jury is sworn in (or, in a bench trial, when the first witness is sworn in).

Question 4

Is the state allowed to prosecute on the greater included when the defendant has been acquitted for the lesser included if the jury deadlocked as to the greater included?

Answer 4

The Double Jeopardy Clause encompasses the doctrine of issue preclusion. Where a jury acquits a defendant of an offense that is a lesser included offense of another offense over which the jury deadlocks, the jury determination that the defendant did not commit the lesser included offense precludes the prosecution from retrying the defendant on the greater offense