§701-115  Defenses.  (1)  A defense is a
fact or set of facts which negatives penal liability.



(2)  No defense may be considered by the trier
of fact unless evidence of the specified fact or facts has been presented.  If
such evidence is presented, then:



(a) If the defense is not an affirmative defense, the
defendant is entitled to an acquittal if the trier of fact finds that the
evidence, when considered in the light of any contrary prosecution evidence,
raises a reasonable doubt as to the defendant's guilt; or



(b) If the defense is an affirmative defense, the
defendant is entitled to an acquittal if the trier of fact finds that the
evidence, when considered in light of any contrary prosecution evidence, proves
by a preponderance of the evidence the specified fact or facts which negative
penal liability.



(3)  A defense is an affirmative defense if:



(a) It is specifically so designated by the Code or
another statute; or



(b) If the Code or another statute plainly requires
the defendant to prove the defense by a preponderance of the evidence. [L 1972,
c 9, pt of §1; am L 1973, c 136, §2(b)]



 



COMMENTARY ON §701-115



 



  The Code establishes two classes of defenses.  As to both, it
places an initial burden on the defendant to come forward with some credible evidence
of facts constituting the defense, unless, of course, those facts are supplied
by the prosecution's witnesses.



  As to the burden of persuasion, two different rules are
codified.  In the case of defenses which are not affirmative, the defendant need
only raise a reasonable doubt as to the defendant's guilt.  The other side of
the coin is that the prosecution must prove beyond a reasonable doubt facts
negativing the defense.  The prosecution in fact does this when the jury
believes its case and disbelieves the defense.



  In the case of affirmative defenses, the burden on the
defendant increases.  Now the defendant must prove by a preponderance of the
evidence facts which negative the defendant's penal liability.  Subsection (4)
defines "affirmative defense," making it clear that this type of
defense needs special legislative prescription.  Unless the Legislature has
made a particular defense affirmative, the defendant's burden is only to raise
a reasonable doubt.



 



Case Notes



 



  Provisions of this section and §702-237, requiring defendant
to prove entrapment by preponderance of the evidence, do not violate due
process.  58 H. 234, 566 P.2d 1370.



  Provisions on entrapment not inconsistent with §702-205.  58
H. 479, 572 P.2d 159.



  Requirement that defendant establish entrapment is not
violation of due process.  58 H. 479, 572 P.2d 159.



  Justification is not an affirmative defense and prosecution
has burden of disproving it once evidence of justification has been adduced. 
60 H. 259, 588 P.2d 438.



  Due process violation where jury may have reached verdict by
improperly shifting burden of proof from prosecution to defense by concluding
that defendant had not established defendant's claim of extreme mental or
emotional distress before considering whether prosecution had disproved that
defense beyond a reasonable doubt.  80 H. 172, 907 P.2d 758.



  Trial courts must specifically instruct juries, where the
record so warrants, that the burden is upon the prosecution to prove beyond a
reasonable doubt that the defendant was not ignorant or mistaken as to a fact
that negates the state of mind required to establish an element of the charged
offense or offenses.  107 H. 239, 112 P.3d 725.



  Defendant's claim of justification, in defense against
prosecution for terroristic threatening, was established regardless of whether
or not defendant used deadly force.  1 H. App. 167, 616 P.2d 229.



  Court's instruction that defendant had the burden of proving
self defense by a preponderance of the evidence was plain error which affected
substantial rights of the defendant.  1 H. App. 214, 617 P.2d 573.



  Since exception to animal nuisance offense, if proved, would
negative defendant's penal liability for animal nuisance, it constituted a
defense; because defendant offered absolutely no evidence at trial, and the
facts constituting defendant's defense were not supplied by the State, the
State was not required to present any evidence disproving defendant's defense
beyond a reasonable doubt.  10 H. App. 353, 873 P.2d 110.



  Defense that someone other than defendant confessed to the
offense and alibi defense, i.e., evidence that defendant was not present at the
time of the crime, are not affirmative defenses.  10 H. App. 448, 877 P.2d 891.



  Defendants did not prove affirmative defense of entrapment
under §702-237(1)(b) by preponderance of evidence as required by paragraph
(2)(b); officer's conduct merely provided defendants with opportunity to commit
offense of promoting a dangerous drug in the first degree.  82 H. 499 (App.),
923 P.2d 916.



  Proof of self-insurance under §431:10C-105 is a
"defense" within the meaning of this section.  90 H. 130 (App.), 976
P.2d 444.