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Legislative Notes


The burden of proof for an affirmative defense in a criminal prosecution was recently revised by H.B. 1168. The new statute provides that: “Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.”

The purpose of H.B. 1168 was to place the burden of proving an affirmative defense on the accused.

This note will discuss the origin and effect of H.B. 1168. The first part will summarize the Ohio law on affirmative defenses. This will be followed by United States Supreme Court decisions and Ohio cases which have discussed the defendant's burden of proof and affirmative defenses. Finally, the constitutionality of H.B. 1168 and its impact on Ohio criminal justice will be examined.

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