Protection of Government Processes --
-- 18 U.S.C. § 1512(d)
Under section 1512(d): "it is an affirmative defense, as to which
defendant has the burden of proof by a preponderance of the evidence, that
conduct consisted solely of lawful conduct and that the defendant's sole
intention was to encourage, induce, or cause the other person to testify
truthfully." 18 U.S.C. § 1512(d). This allocation of the burden of
to the defendant has led some to question the constitutionality of this
Affirmative defenses, such as the one created by 18 U.S.C. §
1512(d), expose a tension between two principles of constitutional law.
Historically, the Supreme Court has held that it is constitutionally
for legislatures to establish affirmative defenses to criminal charges and
the burden of proof with respect to these defenses on the defendant.
Leland v. Oregon, 343 U.S. 790 (1952) (insanity defense). Yet the
has also clearly held that the Constitution requires that the government
all elements of a criminal offense beyond a reasonable doubt. In re
Winship, 397 U.S. 358 (1970).
Due process is satisfied when the government is required to prove
of the elements of the offense, as defined by the legislature. Due process
not require that the government accept the additional burden of disproving
fact constituting an affirmative defense to the charge.
The affirmative defense established by 18 U.S.C. § 1512(d)
an excellent example of this principle. Section 1512 generally proscribes
someone from knowingly intimidating another person with the intent to
delay or prevent that person's testimony. Therefore, a prosecution under 18
U.S.C. § 1512 would require the government to prove beyond a reasonable
doubt: (1) an effort to threaten, force or intimidate another person; and
intent to influence that person's testimony. Once the government had proven
an act of intimidation and an intent to influence the testimony of another,
would be entitled to a conviction unless the defendant could take advantage
the limited affirmative defense provided by 18 U.S.C. § 1512(d). This
defense would only become an issue, however, after the government had
initial burden of proof on all of the elements of the offense. Courts
considering this issue have held that the provision does not
shift the burden of proof. See United States v. Kalevas, 622
Supp. 1523 (S.D.N.Y. 1985). See also United States v.
76 F.3d 442 (2nd Cir. 1996); United States v. Johnson, 968 F.2d 208
Cir.), cert denied, 506 U.S. 964 (1992); United States v.
658 F. Supp 1116, affirmed, 843 F.2d 741, (3d Cir.), cert
488 U.S. 835 (1988).
[cited in USAM 9-69.100]