criminal. • Concur [Kennedy]: Question here is what to do w/r/t duress defense when Congress has enacted a criminal statute but provided no explicit instructions re duress defense. Generally, there’s no reason to presume Congress would have wanted to depart from traditional principles of allocating the burden of proof. For duress, there is good reason to maintain the usual rule of placing the burden of persuasion and production on the party raising the issue since P will often be w/out practical means of disproving D’s allegations. • Concur [Alito w/ Scalia]: Concerned with making sure the majority opinion doesn’t allow the burden of persuasion for the duress defense to vary from one federal criminal statute to another. Doesn’t presume that Congress makes a new judgment about these burdens each time it enacts a criminal statute. • Dissent [Breyer w/ Souter]: Agrees w/ majority that burden of production lies with D, and that the burden of persuasion issue is not constitutional (and that Congress may allocate the burden of persuasion as it sees fit). But thinks that burden of persuasion should lie where such burdens normally lie in criminal cases – i.e. w/ the prosecution. Thinks that where Congress failed to speak to the issue, it doesn’t make sense to fill in with the prevailing norm at the time Congress enacted the statute, but rather the prevailing norm today . Legal scholars disagree about how burden of persuasion should be allocated in duress case, and Breyer is sympathetic to Govt.’s argument that D should be burden of persuasion b/c D has superior access to the relevant proof. However, Breyer thinks there are several factors mitigating in favor of putting burden on P: (1) question of duress resembles that of mens rea – which P must prove BRD. Thinks it is difficult to see a practical distinction b/w affirmative defense of duress and defenses like self- defense (JB – which presumably has burden of persuasion on P). Participatory Risk 1 Mathews v. Eldridge , 424 U.S. 319 (1976) [Powell] Note: This topic and case were assigned for week 1 but were covered next week. See 1 Note: Stein discussed this material in week three. This material is included here to be consistent with the syllabus. 6
notes supra at X. • Facts: Involves question of pre-termination hearing for disability insurance benefits. • Evidentiary burdens: o Claimant must demonstrate, inter alia, that he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. o Claimant bears continuing burden of showing by means of ‘medically acceptable techniques’ that his impairment is of such severity that he cannot perform his previous work or any other kind of gainful work. (That is, taking into account his age, education, and work experience, he cannot engage in any other kind of substantial gainful employment. NB: the work must exist in significant numbers in the region of the country where claimant lives or in several regions of the country.).