burden of disproving defense in Washington

2021We did so in part because the United States Supreme Court had recently “clarified that the prosecution must always bear the burden of disproving a defense that necessarily negates an element of the charged offense.” Id. at 764 (citing Smith 9 State v. Knapp, No. 98067-5 v. United States, 568 U.S. 106, 110 , 133 S. Ct. 714 , 184 L.

2021We did so in part because the United States Supreme Court had recently “clarified that the prosecution must always bear the burden of disproving a defense that necessarily negates an element of the charged offense.” Id. at 764 (citing Smith 9 State v. Knapp, No. 98067-5 v. United States, 568 U.S. 106, 110 , 133 S. Ct. 714 , 184 L.

2020We review jury instructions de novo.13 Jury instructions are proper when they permit the parties to argue their theory of the case, do not mislead the jury, and correctly inform the jury of the applicable law, including the State’s burden of proof.14 A defendant may claim he or she acted in self-defense where the defendant has a subjective, reasonable belief of imminent harm from the victim.15 The amount of force used must be “not more than is necessary.”16 A defendant is entitled to a self-defense instruction when he or she meets the “‘initial burden of producing some evidence that his or her

2020We review jury instructions de novo.13 Jury instructions are proper when they permit the parties to argue their theory of the case, do not mislead the jury, and correctly inform the jury of the applicable law, including the State’s burden of proof.14 A defendant may claim he or she acted in self-defense where the defendant has a subjective, reasonable belief of imminent harm from the victim.15 The amount of force used must be “not more than is necessary.”16 A defendant is entitled to a self-defense instruction when he or she meets the “‘initial burden of producing some evidence that his or her

2019Deer, 175 Wn.2d at 734 (citing State v. Lively, 130 Wn.2d 1, 10-11 , 921 P.2d 1035 (1996)). 8 No. 50390-5-II Bail jumping requires the State to prove that the defendant knew that she was required to appear.

2013Where instead it "excus[es] conduct that would otherwise be punishable," but "does not controvert any of the elements of the offense itself," the Government has no constitutional duty to 7 See supra note 5, listing the jurisdictions that interpret Patterson and/or Martin to hold that prosecution has a constitutional duty to disprove any affirmative defense that negates an element of the crime charged. 8 See, e.g., State v. Deer, 175 Wn.2d 725 , 734 & n.5, 287 P.3d 539 (2012) ("It is generally recognized that the defendant bears the burden of proving an affinnative defense by a preponderance of

2013The sole exception is when a defense ‘negates’ an element of the charged offense, in which case due process requires the State to bear the burden of disproving the defense.” (footnote omitted)), cert. denied, 133 S. Ct. 991 (2013); State v. Lively, 130 Wn.2d 1, 11 , 921 P.2d 1035 (1996) (“If a statute indicates an intent to include absence of a defense as an element of the offense, or the defense negates one or more elements of the offense, the State has a constitutional burden to prove the absence of the defense beyond a reasonable doubt.”).

2013The sole exception is when a defense 'negates' an element of the charged offense, in which case due process requires the State to bear the burden of disproving the defense." (footnote omitted)), cert. denied, 133 S. Ct. 991 (2013); State v. Lively, 130 Wn.2d 1, 11 , 921 P.2d 1035 (1996) ("If a statute indicates an intent to include absence of a defense as an element of the offense, or the defense negates one or more elements of the offense, the State has a constitutional burden to prove the absence of the defense beyond a reasonable doubt."). 9 State v. Lynch (Jeffrey Thomas), No. 87882-0 (Gor

2013An affirmative answer to either question meant that the State bore the burden of disproving the defense: “There are two ways to determine if the absence of a defense is an ingredient of the offense: (1) the statute may reflect a legislative intent to treat absence of a defense as one ‘of the elements included in the definition of the offense of which the defendant is charged,’ or (2) one or more elements of the defense may ‘negate’ one or more elements of the offense which the prosecution must prove beyond a reasonable doubt.” Id. (quoting McCullum, 98 Wn.2d at 490 (quoting Patterson, 432 U.S.

2013An affirmative answer to either question meant that the State bore the burden of disproving the defense: “There are two ways to determine if the absence of a defense is an ingredient of the offense: (1) the statute may reflect a legislative intent to treat absence of a defense as one ‘of the elements included in the definition of the offense of which the defendant is charged,’ or (2) one or more elements of the defense may ‘negate’ one or more elements of the offense which the prosecution must prove beyond a reasonable doubt.” Id. (quoting McCullum, 98 Wn.2d at 490 (quoting Patterson, 432 U.S.

1997"The State, in carrying the burden of proving each element of an offense, does not bear the burden of disproving a claim of duress.” State v. Riker, 123 Wn.2d 351, 366 n.6, 869 P.2d 43 (1994).

1997"The State, in carrying the burden of proving each element of an offense, does not bear the burden of disproving a claim of duress.” State v. Riker, 123 Wn.2d 351, 366 n.6, 869 P.2d 43 (1994).

2022Our Supreme Court has recognized that when the State bears the burden of disproving a defense, a specific instruction to this effect is preferable, “but failure to provide one is not reversible per se so long as the instructions, taken as a whole, make it clear that the State has the burden.” State v. Acosta, 101 Wn.2d 612, 621 , 683 P.2d 1069 (1984) (reversing conviction because “to convict” instruction did not tell jury that force used must be unlawful or without justification when self-defense raised).

2022Our Supreme Court has recognized that when the State bears the burden of disproving a defense, a specific instruction to this effect is preferable, “but failure to provide one is not reversible per se so long as the instructions, taken as a whole, make it clear that the State has the burden.” State v. Acosta, 101 Wn.2d 612, 621 , 683 P.2d 1069 (1984) (reversing conviction because “to convict” instruction did not tell jury that force used must be unlawful or without justification when self-defense raised).

2022In State v. Imokawa, 194 Wn.2d 391 , 397, 450 P.3d 159 (2019), the -8- No. 81930-5-I/9 Supreme Court stated that, in general, a jury instruction explicitly providing that the State must prove beyond a reasonable doubt that the statutory elements of the crime is sufficient when the defense at issue negates an element listed in the to- convict instruction.

2020We review jury instructions de novo.13 Jury instructions are proper when they permit the parties to argue their theory of the case, do not mislead the jury, and correctly inform the jury of the applicable law, including the State’s burden of proof.14 A defendant may claim he or she acted in self-defense where the defendant has a subjective, reasonable belief of imminent harm from the victim.15 The amount of force used must be “not more than is necessary.”16 A defendant is entitled to a self-defense instruction when he or she meets the “‘initial burden of producing some evidence that his or her

2020We review jury instructions de novo.13 Jury instructions are proper when they permit the parties to argue their theory of the case, do not mislead the jury, and correctly inform the jury of the applicable law, including the State’s burden of proof.14 A defendant may claim he or she acted in self-defense where the defendant has a subjective, reasonable belief of imminent harm from the victim.15 The amount of force used must be “not more than is necessary.”16 A defendant is entitled to a self-defense instruction when he or she meets the “‘initial burden of producing some evidence that his or her

2020We review jury instructions de novo.13 Jury instructions are proper when they permit the parties to argue their theory of the case, do not mislead the jury, and correctly inform the jury of the applicable law, including the State’s burden of proof.14 A defendant may claim he or she acted in self-defense where the defendant has a subjective, reasonable belief of imminent harm from the victim.15 The amount of force used must be “not more than is necessary.”16 A defendant is entitled to a self-defense instruction when he or she meets the “‘initial burden of producing some evidence that his or her

2020We review jury instructions de novo.13 Jury instructions are proper when they permit the parties to argue their theory of the case, do not mislead the jury, and correctly inform the jury of the applicable law, including the State’s burden of proof.14 A defendant may claim he or she acted in self-defense where the defendant has a subjective, reasonable belief of imminent harm from the victim.15 The amount of force used must be “not more than is necessary.”16 A defendant is entitled to a self-defense instruction when he or she meets the “‘initial burden of producing some evidence that his or her

2020We review jury instructions de novo.13 Jury instructions are proper when they permit the parties to argue their theory of the case, do not mislead the jury, and correctly inform the jury of the applicable law, including the State’s burden of proof.14 A defendant may claim he or she acted in self-defense where the defendant has a subjective, reasonable belief of imminent harm from the victim.15 The amount of force used must be “not more than is necessary.”16 A defendant is entitled to a self-defense instruction when he or she meets the “‘initial burden of producing some evidence that his or her

2020We review jury instructions de novo.13 Jury instructions are proper when they permit the parties to argue their theory of the case, do not mislead the jury, and correctly inform the jury of the applicable law, including the State’s burden of proof.14 A defendant may claim he or she acted in self-defense where the defendant has a subjective, reasonable belief of imminent harm from the victim.15 The amount of force used must be “not more than is necessary.”16 A defendant is entitled to a self-defense instruction when he or she meets the “‘initial burden of producing some evidence that his or her

2020We review jury instructions de novo.13 Jury instructions are proper when they permit the parties to argue their theory of the case, do not mislead the jury, and correctly inform the jury of the applicable law, including the State’s burden of proof.14 A defendant may claim he or she acted in self-defense where the defendant has a subjective, reasonable belief of imminent harm from the victim.15 The amount of force used must be “not more than is necessary.”16 A defendant is entitled to a self-defense instruction when he or she meets the “‘initial burden of producing some evidence that his or her

2020We review jury instructions de novo.13 Jury instructions are proper when they permit the parties to argue their theory of the case, do not mislead the jury, and correctly inform the jury of the applicable law, including the State’s burden of proof.14 A defendant may claim he or she acted in self-defense where the defendant has a subjective, reasonable belief of imminent harm from the victim.15 The amount of force used must be “not more than is necessary.”16 A defendant is entitled to a self-defense instruction when he or she meets the “‘initial burden of producing some evidence that his or her

2020We review jury instructions de novo.13 Jury instructions are proper when they permit the parties to argue their theory of the case, do not mislead the jury, and correctly inform the jury of the applicable law, including the State’s burden of proof.14 A defendant may claim he or she acted in self-defense where the defendant has a subjective, reasonable belief of imminent harm from the victim.15 The amount of force used must be “not more than is necessary.”16 A defendant is entitled to a self-defense instruction when he or she meets the “‘initial burden of producing some evidence that his or her

2020We review jury instructions de novo.13 Jury instructions are proper when they permit the parties to argue their theory of the case, do not mislead the jury, and correctly inform the jury of the applicable law, including the State’s burden of proof.14 A defendant may claim he or she acted in self-defense where the defendant has a subjective, reasonable belief of imminent harm from the victim.15 The amount of force used must be “not more than is necessary.”16 A defendant is entitled to a self-defense instruction when he or she meets the “‘initial burden of producing some evidence that his or her

2013Dixon v. United States, 548 U.S. 1, 6 , 126 S. Ct. 2437 , 165 L.

2013Dixon v. United States, 548 U.S. 1, 6 , 126 S. Ct. 2437 , 165 L.

2013An affirmative answer to either question meant that the State bore the burden of disproving the defense: "There are two ways to determine if the absence of a defense is an ingredient of the offense: (1) the statute may reflect a legislative intent to treat absence of a defense as one 'of the elements included in the definition of the offense of which the defendant is charged'; or (2) one or more elements of the defense may 'negate' one or more elements of the offense which the prosecution must prove beyond a reasonable doubt." Camara, 113 Wn.2d at 63 8 (quoting McCullum, 98 Wn.2d at 490 (quoti

1978Ziegler next urges, however, that she has been denied constitutional due process under the rationale of Mullaney v. Wilbur, supra. We do not agree because, as we recently said in State v. Atkinson, 19 Wn.