Publication Date


Document Type

Special Contribution


The State has the entire burden of proving the defendant's guilt of the offense charged beyond a reasonable doubt, reads the instruction given to every jury empaneled to try a criminal case in Georgia. The defendant has no burden of proof at all. Where the evidence raises a defense, the burden remains with the State to negate or disprove that defense beyond a reasonable doubt. But those same Georgia citizens, when summoned to federal jury service, may hear a very different instruction: that the defendant, upon raising an affirmative defense, has the burden of proof as to that defense, by a preponderance of the evidence.

What explains the distinction? This Article aims for a complete, concise history of the issue in hopes of prompting the Georgia Supreme Court to remove our jurisprudence from a safe harbor that has long lost its utility.,

The Article proceeds in three parts. Part One looks to Blackstone's rule that the criminal defendant always bears the burden of affirmative defenses. Though simple and clear, Blackstone's rule cannot be thoughtlessly transplanted to modern times because the two systems of criminal law are fundamentally different. Part Two looks at insanity, the original caveat to Blackstone's clear-cut rule. Insanity is the most prominent affirmative defense and, generally, is an area of law unto itself. When considering insanity, the United States Supreme Court opened the door for other affirmative defense challenges, which came in the 1970s. During this time of uncertainty, in State v. Moore, Georgia adopted the safest course by requiring the State to disprove all affirmative defenses. Finally, in Part Three, we explain how federal law quickly resolved the uncertainty by providing that defendants could bear the burden of persuasion for affirmative defenses that did not involve the elements of an offense. We provide examples of how other states have dealt with the issue and show that Georgia is in the minority of states. We conclude by urging the Georgia Supreme Court, when presented with the issue, to justify our continued adherence to Moore or replace it with a rule that is easy to administer, comports with modern notions of due process, and promotes just outcomes.