The Restoration of In re Winship: A Comment on Burdens of Persuasion in Criminal Cases After Patterson v. New York

At the conclusion of its last term, the Supreme Court rendered what should have been a most unremarkable decision. In Patterson v. New York, the Court upheld New York’s affirmative defense of extreme emotional disturbance, which requires a defendant who seeks to reduce his offense from murder to manslaughter to prove by a preponderance of the evidence that he acted under extreme emotional disturbance. Had the case come before the Court seven years earlier, it could have been swiftly dispatched with a brief opinion upholding the New York statute on the grounds that the issue of extreme emotional disturbance does not arise until the state proves beyond a reasonable doubt the “essential elements” of the crime intent and causation–and that “extreme emotional disturbance” is but a slightly modified version of the defense of provocation, for which many states had long placed the burden of proof upon the defendant.