In State v. Lynch, the Washington State Supreme Court confirmed that a trial court’s inclusion of an affirmative defense instruction upon an unwilling defendant violates the defendant’s Sixth Amendment rights in criminal prosecutions.


The State charged Jeffrey Thomas Lynch with indecent liberties and second degree rape.  One of the elements of second degree rape (that the State had to prove beyond a reasonable doubt) was “forcible compulsion.”  At a jury trial, Lynch’s defense to the rape charge was that the State failed to prove forcible compulsion beyond a reasonable doubt because the alleged victim consented to the sexual intercourse.  Over Lynch’s objection, the trial court read the State’s proposed affirmative defense instruction:  that a person is not guilty of rape or indecent liberties if the sexual contact is consensual, and “[t]he defendant has the burden of proving that the sexual intercourse or sexual contact was consensual by a preponderance of the evidence.”  Lynch objected to this instruction, insisting that he had the right to control his defense and that he did not want to bear the burden of proving consent.

The jury convicted Lynch on both charges.  Division 2 of the Court of Appeals affirmed the second degree rape conviction and reversed the indecent liberties conviction.  The Supreme Court granted Lynch’s petition to review the second degree rape conviction.  The Supreme Court simply decided whether the trial court violated Lynch’s Sixth Amendment right to control his defense by instructing the jury on the affirmative defense of consent over Lynch’s objections.  And if so, whether the constitutional error was harmless.


Writing for a six-member majority, Justice Fairhurst held that the trial court violated Lynch’s Sixth Amendment’s implicit right to control his defense, which encompasses the defendant’s decision to present an affirmative defense.  The majority followed its recent opinion in the similar case, State v. Coristine, 177 Wn.2d 370, 300 P.3d 400 (2013), and reasoned that the trial court essentially imposed an affirmative defense on an unwilling defendant over his objection, impinging his autonomy to conduct his defense.

The majority also held that the constitutional error here was not harmless because instructing the jury that Lynch bore the burden of proving consent was inconsistent with Lynch’s trial strategy of casting doubt on the forcible compulsion element.  The trial court’s instruction imposed a greater burden on Lynch than that necessary to create a reasonable doubt about forcible compulsion.

Concurring, Justice Gordon McCloud and two other justices agreed that the trial court violated Lynch’s right to control his defense, and the constitutional error was not harmless beyond a reasonable doubt.  The concurring justices, however, would further hold that the unwanted affirmative defense instruction was also unconstitutional because it violates a defendant’s Fourteenth Amendment due process rights by shifting the burden of proof from the state to the defendant.