This article considers the problem of admitting evidence of a third party’s guilt. Part II addresses several different approaches for dealing with the problem of admitting evidence of a third party’s guilt and will argue that under these approaches or tests, two factors are critical to the admission of such evidence: (1) the nexus or connection between the third party and his commission of the charged crime, as demonstrated by the proffered evidence, and (2) the weight of that evidence or the strength of that connection. Part III argues that under the prevailing approach in several courts, the burden of proof has been unconstitutionally placed on the wrong party—the defendant. This article argues that the burden is properly placed upon the state to oppose the introduction of evidence of a third party’s guilt. This conclusion is based on the following factors: (1) these defenses are not affirmative defenses, (2) these defenses go to a critical element of the government’s case, to wit, the identity of the perpetrator, which the government constitutionally has the burden of proving, and (3) it is unconstitutional to burden the defendant with this obligation.
Stephen Michael Everhart,
Putting a Burden of Production on the Defendant before Admitting Evidence That Someone Else Committed the Crime Charged: Is It Constitutional?,
76 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol76/iss2/3