her Fournal, Vol. 77, No. 5 (Apr. 1968), pp. 880-935. Law Journal Comps Two Kinds of Legal Rul Burden-of-PersiTwo Kinds of Legal Rules 881 The Yale Law Journal Vol. 77: 880, 1968, variably require in eae Of doube-omrerticatissues in the criminal process, * the faithful toa barn consumed in flames, \dced faithful to the policy of certainty in ns; + approach—sy the demand . lepart from the policy of giving the accused the benefit 1h for example, che ay be convicted in‘Two Kinds of Legal Rates, Thus there are two categories of issues. There are Prosecutor here and abroad ms form a duty to render aid to another. become closely associated with the prosec rove beyond a reasonable doubt, The core of Consists of well-defined categories: (1) the occurrence 4» death, oss of property, the fat of loitering Tract ox cao rue eansousye 278 “aati Dow na eiadase tr The Yale Law Journal Vol. 77: 880, 1968, and, under the present fact of the defendant agricuMuraT amd Tow does one determine ere To The prevecitors or 16 The defendant's ide OF the other stiowld-bear-the-risk-of resdeal the facts? Cai one devises principle: ues tobe‘Two Kinds of Legal Rules ‘The Yale Law Journal Vol. 77: a80, 1968 by casting some but i a ling consideration explains the he presumption of innocence HL. Two Kinds of Legal Rules: The Thesis Stated der study range from th pose on the defenday And there are other perm ‘Ot_of step sth common 1 a mediey of di hundred years or the Western legal real toward greater prok hae proc‘Two Kinds of Legal Rules pendently. Among the pei German courts of the In | Western European ju ih ce re the fist require the defendant to prove ca by a preponderance ofthe evidence2= Yet desp Western world -ridden findings tad. su rosa of innocence, but ‘That Western legs challenge forthe I The Yale Law Jou Vol. 77: 880, 1968, repercussions on the burden of persuasion ble position of defendants on i he risk ofr‘Two Kinds of Legal Rules s been rejected by contemporiry legal in determining the German courts Dlameworthiness as ly concern for moral blamewort! tion for criminals expressed in a “blameworthiness.” One co to moral censure The relevance of that ‘The Yale Law Journal tham, one takes the vi ishment shoud De the general deterrence a that only the blameworthy criminal law becomes a standard for fairly and equal burdens of criminal sanctions « brapscends the‘Two Kinds of Legal Rules Provides a perspective for sessing factor of decli necessary condition for punishment rise of general deterrence and fall of ret Vol. 77: 880, 1968, form of legal rl he process, Each of ‘The difference beeween rules subject to exceptions and. ceils is eileTwo Kinds of Legs exceptions. Comprehensive other hand, impose a blameworthinest ofthe def te sory. To provide an historical context les of the necessary and sf ‘The Yale Law Journat Vol. 77: 880, 1968, to a greater risk of conviction id duress than on the supposedly mote cen such a of persuasion wi burdet‘6f persuasion nallocating the ion on the Tsue of consent in cates of battery, yet Steven rms HEM‘Two Kinds of Legal Rules stead elaborated and rel ‘ove the detendane Te tual applica i defendant who asserted ly denying one fact necesary IX At Enero Jemaay, Dease Wiad rbcre yon The Ys Law Journal Vo 77: 880, 1968 WIP Code does peri les a8 elements or as exceptions to Tu‘Two Kinds of Legal Rules The Yale Law Journal Vol. 77: 880, 1968, stem ef plead regative-propasitin:™ a proof of pay 2 wide variety of cir so prevails only sporad y ofthe arguments used to counteract th 0 pre inden of pers is prima facie case. The two fa re case. The system occa cian’ ev Jame. 9 Fivetion eee 897 898‘Two Kinds of Legal diverge in their te ng the prima pri leading systen, And, vo Kinds of issues: those belonging, 3 and those Belonging 899 80, 1968, ‘The Yale Law Journal ‘Though Feuerbach and Mittermaier agreed that reduced to an ineulpitory case for the state and an excul for the defense, they introduced a germ of discontent proach of theTwo Kinds of Legal Rules Vol. 77: 880, 1968, point of certainty. To avol‘Two Kinds of Legal Rules ‘The Yale Law Journal Vol. 77: 880, 1968 ted the appl lefense of aucident in a homicide case as spre veny ae yarden of producing "some evidence” ihe two prongs of theTwo Kinds of Legal ‘The Yale Law Journal Vol. 77: 880, 1968 role in cases of general verdicts, where the Tanguage evidences his cor iands for the princi ced not prove the element of malice murder. The judehad failed to prove that clever argums the prosea vidence to prove the absence of wh The Yale Law Journal Vol. 77; 880, 1968Vol. 77: 880, 1968 ‘Two Kinds of Legul Rules The Yale Law Journal the defendant's knowledge, ‘or convenience demands tice depends on whether though ie were ling of private disputes. To use rules of is to perceive the eriminat ssav-though-itwere-a-procese-tike private tigation AS WE SIE ro this paper, there are detects in that image of the criminal proces, i eondl to German judicial and century.‘Two Kinds of Legal Rules imperceptibly and, as one mig h_conrespond 1880's and. 1800's —i ese Ameriear-couts-then 3s. They were problein unhaunted by the private ferbach. For the fi ‘The Yale Law Journal Vol, 77: 880, 1968Two Ki is of Legal Rules The Yale Law Journal Vol. 77: 880, 1968 tally necessary condition of the defendant’ the mete probability o she German Supreme Court of the species of rule common in private the emergence of compTwo Kinds of Legal Rules ‘The Yale Law Journ:as central claim as, 917 The Vale Law Journal of the holding ‘The pattern of the fed of reform that emerge compre: tawo ends sug between the prominence accorded the actors nedtpability tn viola 'V. The Contours of Comprehensive Rules ‘The general course of Western criminal 1ose who have culpably broken the law may nonetheless refuse to accept the cansec very particular, conclusion, coupled Principe that men are not acouneae The Yale Law Journal 880, 1968 tions to excuse men who have acted under duress or necesity from the charge of Blameworthy conduct,The Yale Law Vol. 77: 880, 1968 finds 2 Few iseuer Whose FataTe Dy reason of ins rely by a showing ofTwo Kinds of Legal Rules nis, enUFapMERE may not ea device devigned se renal Code is at federal courts on the rationale of enteape and scholars have clashed on the appropria defense of voluntarily abandoning ani Cor ‘The Yale Law Journal wonders why. WI Vol. 77: 880, 1968Two Kinds of Legal relevance ‘aims of the defense pri defendant was the one who fi mn the burden of pers cle; one migl the journey ard rule problem of construing the determining what rationale ‘lassfcation reflects concer less for the explanation of the Law Journal Vol. 77: 880, 1968 for the Foire a higher feof the mother) In iving some of the doomed ie‘Two Kinds of Legal Rules front purishiment even Though Wey wae Fistor Inastened-to.acid—they could prove id a Fexsont wnd-tnGerinan Tae that means imp te or on the defense. By choosing the la by they fail to confront ° perception of the problem namely SON De Clas atlon OF INE VURCEM-OF persuasion BY ets The Yale Law Journal Vol. 77: 880, 1968, fying the defense as it did, the court had the doctrinal freedom to apply (oF not toapply the pricipte OF MT atubiorpre-ree-to-the-new-defense? erat characteris burden of persuasion on criminal defendants, Newly-created defenses are often quali‘Two Kinds of Legat ‘The Yale Law Journal Vol. 77: 880, 1968 that the legislature of court hhave bestowed on him. Yet a by mendacions de- 8 i are subject to these fears, they may respond nd based on principle, on a percep- ‘them by imposing on the defendant the burden of going forward on is but a maneuver made for the sike of law the is is, a a condition of the ight to an instruc. tion to the ise a reasonable Code's stand on the defense of mistake of law doubt on regard to his claim. His unsupported factors present in the ease ol credutous protestations of mistake need carry no more wel ‘unsupported eed. After a man and mistake, where proof pend inordinately on the defendant's Jaw judges reasoned ‘cases ranging from foodstuffs" To avoid the stroyed the defenses they feared France. The trend toward comprehensive rules in the burden of pers ‘criminal cases is more than a post hoc rationalization for busden-of. proof developments favorable to criminal defendants. Comprehensive ind for a specific view of the criminal process a view atcon hich (a) the prosecutor represents the in id not those of specific groups of pasar, “and (by the focus of the et Rin i voking criminal sanctio AL The Prosecutor's Constituency Ima private action for the plTwo Ki Legal Rules roles of creditor and ike this: in priv competing interests, e.g, debtors and creditors, pedes torists; and one can do the same in many those causing h Wwe cannot ignore; either we favor the pi hhe stands, or we favor the defendant The Yale Law Journal Vol. 77: 880, 1968, in which private parties, unnerved by the "might resort to violence to fendant’s behavi compreh cesaily denies deference to less sophisticated laming—standards focusing, say, only on intending and ‘Baile a pa‘The Yale Law Journal Vol. 77: 880, 1968, the state must come forth das a criminal and de we danger to the con ngerousness—or pa for confinement, then the ‘The plane for resolving the co of the quantum of proof req case, Reducing the requ th lent serve not only or not even pri bu iat these purposes would be served by the punish ~ment-of-vast Himbers of persons—indeed of any person who brings about a result prohibited by the legislature, Since no ane reared in the recognizes that because soci a whole against the indi defendant, there is a special id hence a justification for stringent protection of the defen. dant by a requirement that his guilt be proved to a near certainty. is im a sense arrayed as rocess has shifted from the supe those individuals who have acted” cont trials to a broader view of ocess appears no races Tor deTerMMT whether officials may justly deprive air iadwTdGaT r the burden never falls upon the accused! dacs ae ate rail 9 cla aS cof men of equi ly argument hallenge to the penal system as 934‘Two Kinds of Legal Rules 4 whote™ On the assu ecificjustficatory rationale for imposing crim do by expressing the equal relevance of i Jing. the law. de a medium for viewing the criminal 935