Who bears the burden of proof of a mitigating circumstance if the statute does not state it?
<p>If a statute states a mitigating or negating circumstance to a criminal charge, who has the burden of proof, the prosecution or the defense?</p>

<p>For example, if a state statute says that it is criminal for a person to threaten another, but in the same statute it says that such a threat will not constitute a crime if the threatened person was trespassing on the defendant's property, then who bears the burden of proof that the threatened person was trespassing (or not trespassing).</p>

<p>In other words, if the law has an exception to a criminal charge, who must prove that the exception does or does not apply? What is the precedent?</p>

<h2>The defense</h2>

<p>These are <a href="https://en.m.wikipedia.org/wiki/Affirmative_defense" rel="nofollow noreferrer">affirmative defenses</a> and the burden of proving they exist lies on the defendant. Note that they have a balance of probabilities burden, not a beyond reasonable doubt.</p>

<p>It doesn’t matter if proving this is a total or partial defense.</p>

united-states criminal-law