evidence "to justify [a reasonable] doubt upon the issue." 17 ALI, Model Penal Code § 1.13, Comment, p. 110 (Tent. Draft No. 4, 1955). If the defendant's evidence does not cross this threshold, the issue-be it malice, extreme emotional disturbance, self-defense, or whatever-will not be submitted to the jury.18 See Sansone v. United States, 380 U. S. 343, 349 (1965); Stevenson v. United States, 162 U. S. 313, 314316 (1896). Ever since this Court's decision in Davis v. United States, 160 U. S. 469 (1895), federal prosecutors have borne the burden of persuasion with respect to factors like insanity, self-defense, and malice or provocation, once the defendant has carried this burden of production. See, e. g., Blake v. United States, 407 F. 2d 908, 910-911 (CA5 1969) (en banc) (insanity); Frank v. United States, 42 F. 2d 623, 629 (CA9 1930) (self-defense); United States v. Alexander, 152 U. S. App. D. C. 371, 389–395, 471 F. 2d 923, 941-947, cert. denied sub nom. Murdock v. United States, 409 U. S. 1044 (1972) (provocation). I know of no indication that this

291 U. S. 82 (1934). See also, e. g., Tot v. United States, supra, at 467-468; Speiser v. Randall, 357 U. S. 513, 523-524 (1958); Leary v. United States, 395 U. S. 6, 33-34 (1969); Barnes v. United States, 412 U. S. 837, 843 (1973). Caution is appropriate, however, in generalizing about the application of any of these cases to a given procedural device, since the term "presumption" covers a broad range of procedural mechanisms having significantly different consequences for the defendant. See McCormick, n. 11, supra, at 802-806; Evans v. State, 28 Md. App. 640, 675–678, 349 A. 2d 300, 324–325 (1975).

17 This does not mean that the defendant must introduce evidence in every case. In some instances the prosecution's case may contain sufficient evidence in support of the defendant's position to generate a jury issue.

18 On many occasions this Court has sustained a trial court's refusal to submit an issue to the jury in a criminal case when the defendant failed to meet his burden of production. See, e. g., Sparf v. United States, 156 U. S. 51, 63–64 (1895); Andersen v. United States, 170 U. S. 481, 510-511 (1898); Battle v. United States, 209 U. S. 36, 38 (1908). Cf. Galloway v. United States, 319 U. S. 372, 395 (1943).

practice has proven a noticeable handicap to effective law enforcement.19

To be sure, there will be many instances when the Winship/ Mullaney test as I perceive it will be more difficult to apply than the Court's formula. Where I see the need for a careful and discriminating review of history, the Court finds a brightline standard that can be applied with a quick glance at the face of the statute. But this facile test invites tinkering with the procedural safeguards of the presumption of innocence, an invitation to disregard the principles of Winship that I would not extend.

19 Dean McCormick emphasized that the burden of production is "a critical and important mechanism in a jury trial." In his view, "this mechanism has far more influence upon the final outcome of cases than does the burden of persuasion, which has become very largely a matter of the technique of the wording of instructions to juries." C. McCormick, Evidence § 307, pp. 638-639, and n. 2 (1st ed. 1954). Cf. Fletcher, supra, n. 13, at 930.

Syllabus

HANKERSON v. NORTH CAROLINA

CERTIORARI TO THE SUPREME COURT OF NORTH CAROLINA

No. 75-6568. Argued February 23, 1977-Decided June 17, 1977 Prior to the decision in Mullaney v. Wilbur, 421 U. S. 684, petitioner was convicted in a North Carolina court of second-degree murder over his claim that he acted in self-defense. The trial judge had instructed the jury that if the State proved beyond a reasonable doubt that petitioner intentionally killed the victim with a deadly weapon the law raised presumptions that the killing was unlawful and that it was done with malice, and that in order to excuse his act petitioner had to prove to the jury's "satisfaction" that he acted in self-defense. The North Carolina Supreme Court affirmed over petitioner's objection to such instructions, refusing to give retroactive application to Mullaney. Although holding that a burden to "satisfy" a jury of a fact is not "significantly less" than persuasion by a preponderance of the evidence and that therefore the charge was erroneous under Mullaney, which required the State to establish all elements of a criminal offense beyond a reasonable doubt and which invalidated presumptions that shifted the burden of proving such elements to the defendant, the court concluded that the retroactive application of Mullaney would have a devastating impact on the administration of justice. Held:

1. The North Carolina Supreme Court erred in declining to hold the Mullaney rule retroactive. Ivan V. v. City of New York, 407 U. S. 203. While in deciding whether a new constitutional rule is to be applied retroactively it is proper to consider the State's reliance on the old rule and the impact of the new rule on the administration of justice if the degree to which the new rule enhances the integrity of the factfinding process is sufficiently small, "where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule [is] given complete retroactive effect.'" Id., at 204 (emphasis supplied). The Mullaney rule falls within this latter category, since it was designed to diminish the probability that an innocent person would be convicted and thus to overcome an aspect of a criminal trial that "substantially impairs its truthfinding function." Pp. 240-244.

2. Nor can the North Carolina Supreme Court's judgment be affirmed on the ground that, even if Mullaney is applied retroactively, the trial

court's instructions left the burden of disproving self-defense beyond a reasonable doubt on the prosecution, or at least did not require the accused to prove self-defense by a preponderance of the evidence, and thus did not violate the Mullaney rule. The North Carolina Supreme Court construed the instructions to the contrary, and since such interpretation is a matter of state law, there is no basis for disagreeing with it. Pp. 244-245.

288 N. C. 632, 220 S. E. 2d 575, reversed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, BLACKMUN, and STEVENS, JJ., joined. BLACKMUN, J., filed a concurring statement, in which BURGER, C. J., joined, post, p. 245. MARSHALL, J., post, p. 245, and POWELL, J., post, p. 246, filed opinions concurring in the judgment. REHNQUIST, J., took no part in the consideration or decision of the case.

Lawrence G. Diedrick argued the cause and filed briefs for petitioner.

Charles M. Hensey, Assistant Attorney General of North Carolina, argued the cause for respondent. With him on the brief was Rufus L. Edmisten, Attorney General.

MR. JUSTICE WHITE delivered the opinion of the Court.

The issue in this case is whether the North Carolina Supreme Court correctly declined to give retroactive application to this Court's decision in Mullaney v. Wilbur, 421 U. S. 684 (1975).

I

Petitioner Hankerson was convicted after a jury trial of second-degree murder and sentenced to 20-25 years in prison. It was conceded at his trial that petitioner killed a man named Gregory Ashe by shooting him through the heart with a pistol at 11 at night on September 29, 1974. The issue at trial was whether petitioner acted in self-defense. The relevant evidence is described below.

Ashe and two friends, Dancy and Whitley, were, according to the testimony of the latter two, driving around in Ashe's

car on the evening of September 29. They went to a pool hall shortly before 11 p. m. and, on discovering that the pool hall was closed, returned to Ashe's car. The car would not start. Ashe asked his companions for a light for his cigarette, but neither had one. Whitley began walking to his home, which was one block away. Ashe and Dancy followed him. Then Ashe decided to return to his car to try to "crank" it. Dancy, according to his and Whitley's testimony, ran after Whitley. Both testified that they then heard a gunshot, heard Ashe yell that he had been shot, and saw petitioner's car speed away. Ashe's body was not found for an hour, and when it was, a fully burned cigarette was lodged between two fingers.

Petitioner testified at trial that he had been driving his car very slowly because of holes in the road when someone asked him for a light. Through his mirror he saw two men. One, i. e., Ashe, walked up to the driver's window. Petitioner pushed his cigarette lighter in and gave it to Ashe. When the lighter was returned, petitioner felt the car shake and saw the other man at the other door, which was locked. Ashe then grabbed petitioner's shoulder with his right hand, and put a knife to petitioner's throat with his left hand. Petitioner then grabbed his gun and shot Ashe. The knife fell inside the Petitioner then drove away. Shortly after the murder, the knife was recovered by a policeman from petitioner's car. Petitioner readily admitted the shooting at that time and told a story to the policeman which was roughly equivalent to his trial testimony.

car.

The State then introduced evidence tending to prove that Ashe had never been seen with a knife of the type found in petitioner's car; that petitioner falsely claimed to the policeman-who questioned him shortly after the shooting-no longer to have possession of the gun; that Ashe was right handed, even though petitioner testified that the knife was wielded with Ashe's left hand; and that although petitioner had told police that Ashe had left a grease mark on his shirt