Legal Epistemology: The Anomaly of Affirmative Defenses

15 Pages Posted: 28 Jul 2008

See all articles by Larry Laudan

Larry Laudan

University of Texas School of Law

Date Written: July, 28 2008

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.

Keywords: affirmative defense, reasonable doubt, presumption of innocence, burden of proof

Suggested Citation

Laudan, Larry, Legal Epistemology: The Anomaly of Affirmative Defenses (July, 28 2008). Available at SSRN: https://ssrn.com/abstract=1183363 or http://dx.doi.org/10.2139/ssrn.1183363

Larry Laudan (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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