Committee Comments

Since the claim that the defendant abandoned participation in the crime charged, notified others engaged in the criminal endeavor of the withdrawal, and attempted to prevent the commission of the crime is a defense, the onus of producing evidence sufficient to raise the defense of abandonment remains on the defendant, unless the evidence of the prosecution has raised the issue. If the defendant fails to adduce any evidence that tends to prove that the defendant's participation in the criminal venture was abandoned, or if the defendant's evidence is insufficient as a matter of law, then the issue of abandonment of the crime is not presented, and no instruction should be given. If the defendant presents sufficient evidence to raise the defense of abandonment, or if the defense is raised by the evidence of the prosecution, an instruction must be given in order to apprise the jurors of the defendant's theory of the case.

Once the defense of abandonment is properly raised, the burden of proving the nonexistence of the defense should rest on the State. Cf. Mullaney v. Wilbur, 421 U.S. 684 (1975) (due process requires that the prosecution prove beyond a reasonable doubt the absence of heat of passion or sudden provocation in a prosecution for homicide). No instructions concerning the defendant's burden to come forward with evidence, or the question of whether the defendant has presented sufficient evidence to warrant an instruction, are included because these matters pertain to questions of law and of trial procedure, both of which are beyond the legitimate concern of the jurors.