UNITED STATES SUPREME COURT DECISIONS ON-LINE

The appeal is dismissed for want of a substantial federal question.

Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.

Appellant was convicted by a jury of murder in the second degree in Delaware Superior Court. The Delaware Supreme Court reversed and remanded with instructions to strike the murder conviction but enter a judgment of conviction for manslaughter; the constitutionality of a Delaware statute that requires a criminal defendant raising an insanity defense to prove mental illness or defect by a preponderance of the evidence was sustained. The relevant sections of the Delaware Code provide:

"401. Mental illness or mental defect.

"(1) In any prosecution for an offense, it is an affirmative defense that, at the time of the conduct charged, as a result of mental illness or mental defect, the accused lacked substantial capacity to appreciate the wrongfulness of his conduct or lacked sufficient will power to choose whether he would do the act or refrain from doing it.

Page 429 U.S. 877 , 878

"(2) If the defendant prevails in establishing the affirmative defense provided in subsection (1) of this section, the trier of facts shall return a verdict of 'not guilty by reason of insanity.'

"s 304. Defendant's affirmative defenses; prove by preponderance of evidence.

"(a) When a defense declared by this Criminal Code or by another statute to be an affirmative defense is raised at trial, the defendant has the burden of establishing it by a preponderance of the evidence." Del.Code Ann., Tit. 11, 401 (1975).

The Delaware Supreme Court held that Leland v. Oregon, 343 U.S. 790 (1952), required its conclusion, because Leland "has not been overruled by Mullaney (v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881 (1975)), . . . either expressly or implicitly." 351 A.2d 561, 562 (1976). Because I believe this case presents the substantial federal question whether Leland can be reconciled with our recent holdings in In re Winship, 397 U.S. 358 (1970), and Mullaney v. Wilbur, supra, I would note probable jurisdiction and set the case for oral argument.

Mr. Justice STEVENS would note probable jurisdiction and set the case for oral argument.

In Mullaney, we considered a Maine rule that placed upon a criminal defendant charged with murder the burden of proving by a preponderance of the evidence that he had acted in the heat of passion on sudden impulse in order to reduce the homicide to manslaughter. We concluded that this rule did not comport with the due process requirement, as defined in In re Winship, 397 U.S., at 361-364, that the prosecution must prove beyond a reasonable doubt every fact necessary to constitute the crime charged. In reaching this conclusion, my Brother Powell's opinion for the Court pointed out that, in 1895, this Court considered and conclusively rejected the practice, accepted in several jurisdictions, of requiring the defendant to negate the presumption that he acted with malice aforethought. 421 U.S., at 694-696. Davis v. United States, 160 U.S. 469 (1895), the [429 U.S. 877 , 879]

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