Defense of Duress—Dixon v. U.S.

In a 7‑2 decision written by Justice John Paul Stevens, the United States Supreme Court held that a criminal defendant charged with violating the firearm statute at issue in Dixon v. U.S., 547 U.S. ____ (2006)(J. Alito, J. Scalia, and J. Kennedy concurring)(J. Breyer and J. Souter dissenting) bears the burden of proving an affirmative defense of duress to a preponderance of the evidence, rather than merely the burden of production.^[1]

Prior to Thursday’s ruling, state courts had been split over which side bears the burden of proof—the defendant to prove the elements of duress or the prosecution to prove that the circumstances did not defeat an element of the crime.^[2] Although the holding in Dixon will affect how states deal with affirmative defenses for this particular offense, it is not clear what the effect will be on the interpretive standard nationally. We discussed the facts of this case in our preview last January.

The dilemma is that it is a violation of due process rights to require a criminal defendant to take on the government’s burden of proving all elements of the crime beyond a reasonable doubt.^[3] Ms. Dixon asserted that duress goes directly to the issue of “willingly” acting in violation of the firearms statute. The majority disagreed, flatly stating that the defense of duress “normally does not controvert any of the elements of the offense itself.”^[4] Therefore, jury questions addressing the issue of whether or not the defendant met her burden may be constitutionally valid, as they were held to be in this case.

Although the Court’s ruling on the burden of proof question relative to the firearms statute in question is decisive, the Supreme Court also addressed a more theoretical consideration: When the law in question does not address the burden of proof for an affirmative defense, by what process must a court know when it will cross the due process line by assigning the burden of proof on the elements to the defendant?

Ultimately, this opinion provides four possible answers to the broader interpretation question. The majority held that since Congress would have looked to general practice at the time the law was enacted, the common law standard that assigns the burden of proof by a preponderance of evidence to a criminal defendant who is claiming an affirmative defense is appropriate.^[5]

Justice Stevens stated that there was “no evidence in the Act’s structure or history that Congress actually considered the question of how the duress defense should work in this context, and there is no suggestion that the offenses at issue are incompatible with a defense of duress.”^[6] This approach gives no weight to the standards now adopted in the Model Penal Code (MPC) and implemented in many state criminal codes.

Justices Alito and Scalia took this reasoning a bit further in their concurrence. They argued that “[d]uress was an established defense at common law…When Congress began to enact federal criminal statutes, it presumptively intended for those offenses to be subject to this defense. Moreover, Congress presumptively intended for the burdens of production and persuasion to be placed, as they were at common law, on the defendant.”^[7] According to this theory, federal legislation, like amber, preserves whatever legal standard becomes trapped in it at the moment it becomes exposed to the light of day, particularly when it is otherwise silent on the issue.

In his concurrence, Justice Kennedy proposed that Congress would not have denied a modern court the opportunity to benefit from evolving precedent and legal scholarship.^[8] Therefore, any court applying a criminal law that is incomplete in this way must be allowed to consider the MPC and other sources of jurisprudence on the issue.^[9] This more expansive view permits judges to do the job of interpreting the law when they craft the instructions that guide juries in their deliberations.

Finally, Justices Breyer and Souter dissented, advocating a more normative approach. They wrote that “Congress’ silence typically means that Congress expected the courts to develop burden rules governing affirmative defenses as they have done in the past, by beginning with the common law and taking full account of the subsequent need for that law to evolve through judicial practice informed by reason and experience.”^[10] Based on that approach, for a laundry list of policy reasons, the dissenters concluded that the burden of persuasion should rest with the prosecution to show beyond a reasonable doubt.^[11]

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[1] Dixon v. U.S., 547 U.S. ____ (2006)(Justices Alito, Scalia, Kennedy concurring and Justices Breyer and Souter dissenting). See also Top Court Sides with Gov’t in Duress Case, Associated Press, June 22, 2006 [hereinafter AP].
[2] AP supra note 1. See also Dixon at 12-13.
[3] Dixon at 3-5.
[4] Dixon at 4. The majority cite case law and scholarly treatises in support of its position.
[5] Dixon at 15.
[6] Dixon at 10-11.
[7] Dixon at concurrence, J. Alito, 1.
[8] Dixon at concurrence, J. Kennedy, 1-2.
[9] Id.
[10] Dixon at dissent, J. Breyer, 2-3.
[11] Id. at 10.