State v. White

I fully agree with the majority that the burden of persuasion was impermissibly shifted to the defendant in this case because in order to rebut the presumption of legitimacy he was required to prove nonaccess during the period of conception. The burden of persuasion on any element of a criminal offense may not through the use of presumptions be shifted to a defendant; however, the burden of production may be placed on the defendant to produce some evidence to raise a factual issue on the question involved. If the defendant fails to produce such evidence then the presump*513tion remains in the…