concurring.
The primary focus in this case is whether Ohio may, consistent with due process, utilize its contemporaneous objection rule to bar retroactive effect to its Robinson decision. Having concluded in State v. Humphries, 51 Ohio St.2d 95, 364 N.E.2d 1354 (1977) that Robinson should apply retrospectively, Ohio now attempts to deny Isaac the benefits of the retroactive application of Robinson because his counsel failed to object at trial to the jury instructions on the issue of self-defense.
In analyzing Ohio’s failure to accord Isaac the retroactive benefit of Robinson, the majority employs a standard of review which seeks to discover some rational relationship between the purposes that Ohio’s contemporaneous objection rule is designed to serve and the reason for which that rule was invoked in this case. The majority concludes that the utilization of the contemporaneous objection rule to bar retroactive application of Robinson is an arbitrary exercise of state procedural law which constitutes a deprivation of due process. This is so, the majority reasons, because the contemporaneous objection rule presupposes the existence of a palpable objection, and here Isaac’s counsel had no valid reason to object to the trial judge’s instructions on the issue of self-defense. To the contrary, however, an objection based on the constitutional infirmity subsequently isolated in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) was always available; that is, Isaac could have objected that the instructions placed upon him the burden of proof in violation of the principles of due process expressed in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375 (1970).
I write separately because I believe that such speculation as to whether Isaac’s counsel could or should have raised an objection at trial is too hypothetical a predicate for federal interdiction of a state procedural rule. It is an equally uncertain ground for denying Isaac a new trial in which the burden of proof as defined by Robinson applies. Admittedly, federal interference with Ohio’s contemporaneous objection rule should proceed cautiously in light of the Supreme Court’s deference to the application of state procedural rules. See e. g. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed .2d 594 (1977). This deference takes on an added dimension in light of Justice White’s observation in Hankerson v. North Carolina, 432 U.S. 233, 244 n.8, 97 S.Ct. 2339, 2345, 53 L.Ed.2d 306, 316 (1977), that a state might be able to use its procedural rules to insulate past convictions from collateral attack.1 From a legal technician’s viewpoint, this dicta offers a viable avenue for avoiding the full impact of Mullaney.
Although I believe that, despite Mullaney v. Wilbur, it is constitutionally permissible for a state to treat self-defense as an affirmative defense that the prosecution need not negate beyond a reasonable doubt, see *1129Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Berner v. Egeler, 583 F.2d 515, 524 (6th Cir. 1978) (Engel, J., dissenting), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347; cf. Hankerson v. North Garoiina, 432 U.S. 233, 245, 97 S.Ct. 2339, 2346, 53 L.Ed.2d 306, 316, Blackmun, J., concurring, the Ohio Supreme Court has interpreted O.R.C. § 2901.-05(A) so as to place upon the defendant only the burden of going forward with evidence sufficient to raise the defense. State v. Robinson, 47 Ohio St.2d 103, 351 N.E.2d 88 (1976).
As expressed by a unanimous Court in Hankerson, the definition and placement of the burden of proof is a fundamental aspect of the truth-finding process of a criminal trial. Hankerson, supra, 432 U.S. at 243-44, 97 S.Ct. at 2345, 513 L.Ed.2d at 315-316. See also Winship, 397 U.S. at 370-72, 90 S.Ct. at 8, 1075-1976, 25 L.Ed.2d at 378 (Harlan, J., concurring); Speiser v. Randall, 357 U.S. 513, 525-26, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); see generally, Jefferies & Stephen, Defenses, Presumptions and Burden of Proof in the Criminal Law, 88 Yale L.J. 325 (1979). Protecting that truth-finding function must take precedence over a state’s procedural concerns expressed in a contemporaneous objection rule. As such, denying to a defendant a trial under what the Ohio Supreme Court has concluded to be the proper allocation of the burden of proof amounts to a denial of due process of law.
Redefining the burden of proof placed upon a defendant, whether it be by a new constitutional rule or by a new statutory interpretation of constitutional dimension, has a substantial impact upon a criminal trial’s truth-finding function. In such situations retroactive application is imperative. Hankerson, supra, at 432 U.S. at 241, 97 S.Ct. 2339, 53 L.Ed.2d 306, quoting Ivan V. v. City of New York, 407 U.S. 203, 204-05, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659, 661 (1972).
Since the Ohio Supreme Court’s decision in Robinson significantly affects the burden of proof to be placed upon a defendant, due process requires that Isaac receive the benefits of that court’s interpretation. Accordingly, I concur in the judgment of the court awarding the writ.
. Were the challenge here directed to the substance of the jury instructions, use of a contemporaneous objection rule to preclude habeas corpus review might be justified. See Frazier v. Weatherholtz, 572 F.2d 994, 997-98 (4th Cir. 1978). See also United States v. Jackson, 569 F.2d 1003, 1008-09 (7th Cir. 1978).