dissenting.
Where a defendant is charged with reckless manslaughter, the majority holds that a jury instruction stating that "the prosecution bears no burden of disproving self-defense with respect to which it is not an affirmative defense is an accurate statement of Colorado law," claiming such an instruction does not improperly shift the burden of proof to the defendant. To the contrary, such a jury instruction does not accurately state the law in this case, and does shift the burden of proof to the defendant. Further, it is inconsistent with another jury instruction stating that the prosecution has the burden to prove *558every element of reckless manslaughter beyond a reasonable doubt, and is therefore highly misleading; thus, it should not be given.
The majority's holding assumes that when self-defense evidence is not presented as an affirmative defense, such evidence has only one constitutionally-relevant effect: it "tends" to disprove the elements of the crime. Accordingly, if such evidence only "tends" to disprove the elements of the crime, the prosecution must "simply" prove the elements of the crime and "need not do anything else to convict the defendant." See maj. op. at 557. Thus, if the jury is properly instructed that the prosecution must prove all the elements of the crime, and self-defense is not an affirmative defense that would create an additional element, then there is no constitutional error to also instruct the jury that the prosecution need not disprove self-defense. See maj. op. at 557.
To justify this approach, the majority relies heavily on how the Supreme Court assessed self-defense jury instructions in Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987), essentially equating the cireumstances in Martin with the cireum-stances here. See maj. op. at 557. But the majority's reliance on Martin is misplaced, as it is critically distinguishable: in Martin, the affirmative defense, once established, did not necessarily negate any one of the elements of the erime. That is not the case here. Unlike other element-negating defenses, evidence of self-defense in this case does more than just "tend" to disprove an element of the crime: it necessarily negates the element of recklessness. The constitutionality of the jury instruction at issue therefore cannot be resolved by just equating it with any other element-negating defense, as the majority implicitly assumes.
In Martin, the Court held that the state could permissibly require the defendant to prove self-defense and that no due process violation occurred by instructing the jury that the defendant had the burden to prove self-defense by a preponderance of the evidence. 480 U.S. at 233-36, 107 S.Ct. 1098. Such an instruction passed constitutional muster in part because of other instructions given to the jury. The other instructions provided that the prosecution had the burden-never shifting-to prove every element of aggravated murder beyond a reasonable doubt, and that to find the defendant guilty, none of the evidence presented by either party could raise a reasonable doubt as to any of the elements of aggravated murder. Id. at 233, 107 S.Ct. 1098. Without compromising the due-process sanctity of these other jury instructions, the Court acknowledged that evidence of self-defense may "tend to negate" the element of aggravated murder requiring the defendant to "purposely, and with prior calculation" take another's life.1 Id. at 234, 107 S.Ct. 1098. But because the jury was properly informed of the prosecution's burden regarding the charged offense, the jury could fairly assess whether any of the self-defense evidence raised "a reasonable doubt about the sufficiency of the State's proof of the elements of the crime." Id.
The majority treats the element-negating defense here just as the Court treated element-negating evidence of self-defense in Martin, ignoring the critical difference between the two. In Martin, even if the prosecution had proven its case beyond a reasonable doubt, it would not have necessarily disproved any of the elements of self-defense. Indeed, the Court contemplated this seenar-io, observing that even if the jury was convinced beyond a reasonable doubt that the defendant committed aggravated murder, "the killing will still be excused if the elements of the defense are satisfactorily established." Id. In short, for the Court, certain elements of self-defense and aggravated murder would "often" overlap, but not always; no necessary relationship existed between the prosecution proving its case and disproving the defendant's self-defense evidence-evidence that could have the tendency to, but did not have to, negate the elements of the charged offense.
*559In contrast, here, by proving reckless manslaughter, the prosecution has to, as a matter of logical necessity, disprove any evidence of self-defense raised by the defendant. The majority, before inexplicably retreating behind Martin, appears to admit this. See maj. op. at 556 ("[I]t is impossible for a person to act both recklessly and in self-defense, because self-defense requires one to act justifiably, while recklessness requires one to act with conscious disregard of an unjustifiable risk." (citations omitted)).
Our precedent certainly supports this. We have noted that criminal negligence requiring a jury finding that the defendant "failed to perceive an unjustified risk that a reasonable person would have perceived in the situation," is "totally inconsistent" with a theory of self-defense. People v. Fink, 194 Colo. 516, 518, 574 P.2d 81, 83 (1978). This reasoning underscored our holding in Fink that a trial court need not give any specific instructions to jurors on self-defense where criminal negligence is charged: as a matter of logical necessity, jurors would understand that if it found the defendant acted recklessly, "they have already precluded any finding of affirmative defense." Id. (quoting Notes on the Use of the Colorado Jury Instructions (Criminal) § 9:7 (Manslaughter-Reckless)); see also Case v. People, 774 P.2d 866, 870 (Colo.1989) ("By finding [the defendant] guilty of reckless manslaughter, the jury has found that she consciously disregarded a substantial and unjustifiable risk that [the victim] would be killed. The jury therefore rejected the contention that [the defendant] was acting in self-defense. Had the jury believed [the defendant's] testimony that she was acting in self-defense, it would not have found her to have acted recklessly." (citations omitted)).
Once this necessary, inverse relationship between a defense and the elements of the offense is established-onee the prosecution must, by virtue of proving its own case, necessarily disprove self-defense evidence raised by the defendant-it has constitutional consequences. In Patterson v. New York, the Supreme Court held a statute that shifted to the defendant the burden to prove the affirmative defense of extreme emotional disturbance did not violate due process partly because the elements of the charged offense were separate from the affirmative defense: the affirmative defense "does not serve to negative any facts of the crime which the State is to prove in order to convict of murder. It constitutes a separate issue on which the defendant is required to carry the burden of persuasion...." 432 U.S. 197, 206-07, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). The implication arising from Patterson is obvious: where an affirmative defense does negative the elements of the crime the prosecution must prove, the prosecution must carry the burden to disprove that defense. And although the Court in Patterson referred to affirmative defenses, under In re Winship's broad mandate that the prosecution must prove beyond a reasonable doubt "every fact necessary to constitute" the charged crime, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the same logic would apply to any defense.
Justice Powell, placing Martin v. Ohio's holding in the context of Patterson, explained the constitutional justification for why the prosecution should have the burden to disprove a defense that negates an element of the charged offense:
If the jury is told that the prosecution has the burden of proving all the elements of a crime, but then also is instructed that the defendant has the burden of disproving one of those same elements, there is a danger that the jurors will resolve the inconsistency in a way that lessens the presumption of innocence. For example, the jury might reasonably believe that by raising the defense, the accused has assumed the ultimate burden of proving that particular element. Or, it might reconcile the instructions simply by balancing the evidence that supports the prosecutor's case against the evidence supporting the affirmative defense, and conclude that the state has satisfied its burden if the prosecution's version is more persuasive. In either case, the jury is given the unmistakable but erroneous impression that the defendant shares the risk of nonpersuasion as to a fact necessary for conviction.
Martin, 480 U.S. at 237-38, 107 S.Ct. 1098 (Powell, J., dissenting).
*560Although Justice Powell disagreed with the majority over whether the specific defense in Martin sufficiently negated an element of the charged offense so as to invoke the impli cation in Patterson, see id. at 239-40, 107 S.Ct. 1098, neither he nor the Martin majority undermined the implication in Patterson that the prosecution must carry the burden to disprove any defense that necessarily ne gates an element of the charged offense.2 And the great weight of federal authority supports this proposition. See United States v. Leahy, 473 F.3d 401, 403 (1st Cir.2007) ("[Wle hold that where ... proof of the justification defense does not negate an ele ment of the charged crime, the burden of proof in connection with that defense rests with the defendant."); United States v. Leal-Cruz, 431 F.3d 667, 671 (9th Cir.2005) ("[Wle conclude that the Due Process Clause forbids shifting the burden of proof to the defendant on an issue only where establishing the defense would necessarily negate an element that the prosecution must prove beyond a reasonable doubt under Winship"); United States v. Brown, 367 F.3d 549, 556 (6th Cir.2004) ("[If an affirmative defense bears a necessary relationship to an element of the charged offense, the burden of proof does not shift to defendant."); United States v. Dodd, 225 F.3d 340, 344 (3s Cir.2000) ("Although the Due Process Clause requires the government to prove all elements of the charged offense beyond a reasonable doubt, and therefore requires the government to disprove beyond a reasonable doubt any defenses that negate an element of the charged offense, there is no constitutional bar to the defendant's bearing the burden of persuasion on defenses that do not negate an element of the offense." (citations omitted)); United States v. Deleveaux, 205 F.3d 1292, 1298 (lith Cir.2000) ("The burden to prove or disprove an element of the offense may not be shifted to the defendant. Thus, if a defendant asserts a defense that has the effect of negating any element of the offense, the prosecution must disprove that defense beyond a reasonable doubt." (citations omitted); United States v. Unser, 165 F.3d 755, 764 (10th Cir.1999) ("[Wlhen evidence has been produced of a defense which, if accepted by the trier of fact, would negate an element of the offense, the government must bear the ultimate burden of persuasion on that element, including disproving the defense."); United States v. Johnson, 968 F.2d 208, 213-14 (2d Cir.1992) ("To be valid, an affirmative defense may not, in operation, negate an element of the crime which the government is required to prove; otherwise, there would be too great a risk that a jury, by placing undue emphasis on the affirmative defense, might presume that the government had already met its burden of proof. Such a presumption would, without question, violate due process."); Wynn v. Mahoney, 600 F.2d 448, 450-51 (4th Cir.1979) (finding constitutional error in instructing the jury that the defendant had the burden to prove self-defense, because the absence of self-defense was an element of murder that had to be proved by the prosecution).
Based on this authority, it was constitutional error for the trial court in this case to instruct the jury that the prosecution had no burden to disprove evidence of self-defense. As established above, self-defense evidence, once appropriately raised-as it was in this case 3-necessarily negates the element of recklessness; the prosecution cannot prove recklessness without, in effect, disproving the self-defense evidence. The trial court's contrary instruction thus violated the constitutional requirements of Patterson and Win-ship.
Nor is the instruction saved by the trial court's general instruction that the prosecution has the burden to prove all the elements of reckless manslaughter. "[TJhe giving of incompatible instructions on the burden of proof is fatal error." Young v. Colo. Nat'l Bank of Denver, 148 Colo. 104, 125, 365 P.2d 701, 713 (1961); see also Barr v. Colo. *561Springs & Interurban Ry. Co., 63 Colo. 556, 560, 168 P. 263, 265 (1917) ("Conflicting or contradictory instructions furnish no correct guide to the jury, and the giving thereof is erroneous ...." (quotation omitted)). And this is because "[al reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict." Francis v. Franklin, 471 U.S. 307, 322, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). While the jury may have followed the general instruction and placed the burden to disprove self-defense evidence on the prosecution, it is entirely possible-and more likely-that the jury followed the opposite and more specific instruction that the prosecution did not have any burden to disprove the evidence of self-defense. In line with Justice Powell's reasoning, the jury might have harmonized these conflicting instructions by balancing the evidence supporting both sides and rendering its verdict based on whichever side's evidence was simply more persuasive, instead of holding the prosecution to its more rigorous burden of proof,. This would be impermissible. See Jolly v. People, 742 P.2d 891, 898 (Colo.1987) ("The critical consideration in determining the validity of [a jury instruction] is whether a reasonable jury could have understood the instruction as relieving the state of its burden of persuasion on an essential element of the crime."). Hence, the jury instruction the majority claims is an accurate statement of the law is, in fact, unconstitutional.
Although the majority holds that no reversible error occurs where a jury is given an instruction tracking the language of section 18-1-704(4), see maj. op. at 557, cautious trial court judges should still decline to give such an instruction. The majority does not require that trial courts give this instruction, and neither does the statute. Section 18-1-704(4) requires trial courts to: (1) allow defendants to present evidence of self-defense; (2) give a "self-defense law instruction" where evidence of self-defense is presented; and (8) inform the jury that it may consider self-defense evidence "in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner." In contrast, although the statute states the prosecution has no burden to disprove self-defense, it does not require that juries be so informed: "[The self-defense law instruction shall not be an affirmative defense instruction and the prosecution attorney shall not have the burden of disproving self-defense." Id.
Further, trial court judges should decline to give this instruction because it is highly misleading. Courts should not give instructions if they embody "an incorrect or misleading statement of the law." People v. Bossert, 722 P.2d 998, 1009 (Colo.1986). Jury instructions should not be used if their language creates "a reasonable possibility that the jury could have been misled relative to reaching a verdict." People v. Williams, 23 P.3d 1229, 1232 (Colo.App.2000); see also People v. DeHerrera, 697 P.2d 734, 740 (Colo.1985)(concluding that the "unduly confusing" jury instruction should not have been given).
By giving the jury instruction the majority declares creates no reversible error, a "reasonable possibility" certainly exists that a jury will be misled by instructions that on one hand require the prosecution to prove every element of reckless manslaughter beyond a reasonable doubt, but on the other hand state that the prosecution has no burden to disprove any self-defense evidence, even though logically, it is impossible for the prosecution to prove reckless manslaughter without in effect disproving such self-defense evidence. If, in Fink and Case, we observed that juries were capable of recognizing the necessary, inverse relationship between self-defense and recklessness or criminal negli-genee, there is no reason to suppose that the jury here was not capable of recognizing the same relationship. And onee recognized this relationship renders the instructions inconsistent: one instruction places the burden to prove recklessness on the prosecution, but the other, by stating that the prosecution has no burden to disprove evidence necessarily negating the element of recklessness, has the effect of placing on the defendant the burden to disprove he acted recklessly. We do not know how juries will resolve this inconsistency, and we-and cautious trial court judges-should not hazard a guess.
Because the jury instruction in this case violates due process and misleads juries on *562the critical issue of the prosecution's burden to prove every element of the charged offense beyond a reasonable doubt, it should not have been given. I respectfully dissent.
I am authorized to state that Chief Justice BENDER and Justice HOBBS join in this dissent.
. The Court in Martin noted that evidence of self-defense could negate the "purposeful killing by prior calculation" element of aggravated murder because "lilt may be that most encounters in which self-defense is claimed arise suddenly and involve no prior plan or specific purpose to take life. In those cases, evidence offered to support the defense may negate a purposeful killing by prior calculation and design...." Id. at 234.
. For a good discussion of how Patterson and other Supreme Court precedent support this proposition, see United States v. Leal-Cruz, 431 F.3d 667, 670-72 (9th Cir.2005).
. In line with section 18-1-704(4), C.R.S. (2010), the defendant presented evidence of self-defense and was thus entitled to a self-defense instruction. Of course, if the defendant had not presented any evidence of self-defense, he would not have been entitled to a self-defense instruction at all, and none of the constitutional issues at issue in this case would have been implicated.