Circuit Judge, specially concurring:
I concur in the result and join fully in all of the court’s opinion save Part III dealing with North Carolina’s presumption of malice and unlawfulness in murder trials. As to that, I agree with the court’s ultimate conclusion that the presumption’s use here was not unconstitutional, and with much of the court’s rationale in reaching that conclusion. I write separately, however, to express an understanding on this issue that may be directly at odds with portions of the majority opinion and that undoubtedly sees in the issue a wider range of problems than is considered in the majority opinion.
I
As the majority indicates, the most critical question presented by the challenged instruction is the hitherto unanswered one of the constitutionality of state procedures that place upon the defendant a burden of producing “some” evidence respecting elements of the crime of murder, at peril of having invoked against him a mandatory presumption respecting those elements for use by the jury. As further indicated, the Supreme Court has expressly reserved decision on the specific question, see Francis v. Franklin, — U.S.-,-n. 3, 105 S.Ct. 1965, 1971 n. 3, 85 L.Ed.2d 3441 (1985).
Resolution of this question presents serious problems of reconciling the challenged instruction with Supreme Court decisions respecting the use of the type presumption it incorporated. I believe that this can be done conformably with underlying due process concerns. But I believe it can only be done conformably with Supreme Court precedents by considering the jury instruction itself as merely the culminating element in a wider jury control device that includes a prior placement upon the defendant of an unmet burden of producing evidence. Only because the Supreme Court has not directly considered the use of this type presumption in that wider context do I believe it may be upheld faithfully to the Court’s precedents.
To permit analysis in that wider context, it is necessary first to understand the total state procedural device within which the defendant’s production burden and the jury instruction reflecting whether the burden has been carried are interrelated elements. This requires looking beyond the instruction itself, but that is the convenient starting point.
*178That instruction simply tells the jury that if the jury is persuaded beyond a reasonable doubt that the defendant killed the victim intentionally with a deadly weapon, “the law presumes” that the killing was done “with malice” and “unlawfully.” In terms of the Allen Court’s analysis, this is a “mandatory” presumption that “told” the jury that it “must find the elemental fact[s] [here malice and unlawfulness] upon proof [convincing to it beyond a reasonable doubt] of the basic fact[s] [here, intentional killing with a deadly weapon].” County Court of Ulster County v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2225, 60 L.Ed.2d 777 (1979) (emphasis in original).
Unmentioned to the jury, because it had nothing to do with the jury’s fact-finding function, is the legal basis for this mandatory presumption: that the defendant had failed to present even “some evidence” to rebut the presumed connection between the two facts, i.e., had failed to carry a burden of production to “come forward with some evidence” that would rebut the presumption.
This burden of production obviously therefore does not derive from the jury instruction itself. Neither is it a feature of the state statutes defining the crime at issue. See N.C. Gen. Stat. § 14-17 (murder). Rather, it is wholly a creature of state decisional law tracing back to procedures developed in common law murder prosecutions. See State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575, 585-86 (1975). It is to that decisional law, therefore, that one must turn to find the nature and operation of this production burden as a critical component of the total jury-control device. Cf. Allen, 442 U.S. at 158 n. 16, 99 S.Ct. at 2226 n. 16 (recourse to statutes and cases may be required to determine what kind of presumption is involved).
The overall nature and operation of the North Carolina procedural device is best explained in two well-considered post-Miilaney opinions of the Supreme Court of North Carolina, Hankerson, 220 S.E.2d at 588-89 (Exum, J.) (describing operation that would in future avoid Mullaney unconstitutionality) and State v. White, 300 N.C. 494, 268 S.E.2d 481, 485-89 (1980) (Exum, J.) (elaborating on Hankerson presumption in light of Sandstrom and Allen and applying general principles of latter two cases to another common law presumption). From Hankerson and White, the following emerges.
Under North Carolina law, “malice” and “unlawfulness” are elements of the crime of murder in the second degree. The state, therefore, under Mullaney, has the burden of convincing the jury beyond a reasonable doubt of the existence of these two elements, along with the other elements of the crime. This is a burden of persuasion that remains throughout on the state. Nevertheless, to hold these elements fully in direct issue for jury resolution unaided by the presumption, a defendant has the burden of producing some evidence that tends to negate the existence of the elements. As to malice, this would be “some” evidence that any killing done was done “in the heat of passion on sudden provocation.” As to unlawfulness, it would be “some” evidence that any killing done was in self-defense.2 Failure to carry that production burden invokes the presumption, whose effect may then be submitted to the jury for use in deciding whether the elements of malice and unlawfulness have been proven beyond a reasonable doubt.
These respective burdens are implemented in jury trials by the traditional device of instructions to the jury that define and submit the disputed factual issues that remain for resolution under controlling substantive principles and the appropriate burdens of persuasion. The first step in administering this jury control device therefore precedes any instruction to the jury about its factfinding function. The judge first decides as a matter of law whether on all the evidence the defendant’s slight burden of production has been carried. If he determines that it has not been carried, he *179does not tell the jury this, he simply tells them that if the evidence before them (including of course the unremarked non-evidence of “heat of passion” or self-defense) persuades them beyond a reasonable doubt that the defendant killed intentionally with a deadly weapon, then they must also find that beyond a reasonable doubt he killed with malice and unlawfully (the “law presumes” the one from the other). Failure to carry that burden of production thus “raises” the presumption.
On the other hand, if the judge determines that some evidence of heat of passion or self-defense has been adduced— that the burden of production has been carried — again he does not specifically tell the jury so. But because the effect is to “dissipate” (or prevent the invocation of) the mandatory presumption, he simply does not submit it for use by the jury in reaching a verdict. In this circumstance he may, however, in instructing the jury on the malice and unlawfulness elements, tell the jury that the evidence of intentional killing with a deadly weapon may, but need not, give rise to an inference of malice and unlawfulness as defined elements of the crime. See Hankerson, 220 S.E.2d at 589 (“mandatory presumption ... disappears but the logical inferences from the facts proved remain in the ease to be weighed against [the rebutting] evidence”).3
From this, several critical things about the device appear. First, and most important, is the fact that as judicially created this presumption is not intended to shift to a defendant any burden of persuasion. That however does not foreclose the possibility that by an erroneous instruction, or as a necessary consequence of a correct statement of the presumption, the burden of persuasion might be impermissibly shifted in a jury’s mind.
Second, the practical effect of the device is to require a criminal defendant to do something more than merely stand on his “general issue” plea of not guilty in order to hold the state to its full ingoing burden of persuasion on all elements of the crime unaided by any compelled inference of “elemental fact” from proven “basic” fact.
Third, proper administration of the device depends upon the trial judge’s accurate determination as to whether the defendant’s production burden has been carried — whether the defendant has produced at least “some” evidence to dissipate the putative presumption. If there is “some” evidence in a particular case but the trial judge erroneously determines that there is not, and on that basis submits the issue of malice and/or unlawfulness subject to the mandatory presumption, the effect would necessarily be to “curtailf ] the [jury’s] freedom to assess the evidence independently," Allen, 442 U.S. at 156, 99 S.Ct. at 2224 (emphasis added), i.e., on the conflicting evidence alone. Such a specific trial error would presumably be of constitutional dimensions, and would be subject to free appellate review.4
Fourth, the presumption that finally effectuates the device has the flat effect of making proof of intentional killing with a deadly weapon in circumstances containing no suggestion of “heat of passion on sudden provocation” or of “self-defense” tantamount to proof of “malice” and “unlawfulness.”
II
To determine the constitutionality of the overall procedural device, including but not limited to the culminating jury instruction, *180therefore requires several related but independent inquiries. The first is whether, notwithstanding its intended effect, the jury instruction as given could reasonably have been interpreted by the jury to place upon defendant any burden of persuasion on disputed issues. The second is whether placing any burden of production upon a criminal defendant at peril of having invoked against him a mandatory presumption with respect to an element of the crime charged violates due process. The third is whether there was any evidence that tended to negate the existence of malice and unlawfulness, so that submitting the mandatory presumption in this case violated due process. The last is whether, all other possible objections aside, the mandatory presumption used here passes muster in terms of the rationality of its compelled inference of ultimate or elemental facts from proof of basic or evidentiary facts, in light of the defendant’s unmet production burden.
A.
The first question is whether, notwithstanding the intended function of the presumption in the jury’s deliberation — that it should not shift to the defendant any burden of persuasion — it must nevertheless be found to have had that unconstitutional effect by virtue of the form and context in which it was submitted in the jury instructions.
Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and Francis v. Franklin, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344, indicate that the presumption would surely have been unconstitutional on this basis had it been submitted in the context of those cases, i.e., where the presumed fact was a fully disputed element of the crime charged at the time of submission to the jury.
The constitutional vice found in the mandatory presumptions in those cases was their potential, in that context, for leading the jury reasonably to believe that because the law “presumed intent” from the doing of acts, this placed upon the defendant some burden to dissuade the jury of that presumed fact, an essential and fully disputed element of the crime charged. While this potential was, rather ironically, found heightened in Francis by the use of further language instructing that the presumption “may be rebutted” (clearly intended to avoid communicating an “irrebuttable” or “conclusive” effect), see id. at -, 105 S.Ct. at 1968, the instruction in Sandstrom was found to have the impermissible potential without any comparable language affirmatively suggesting that it lay with the defendant to negate or rebut the presumed fact of intent. See Sandstrom, 442 U.S. at 513-15, 99 S.Ct. at 2453-54.
The mandatory presumption of malice and unlawfulness used in this case seems to me indistinguishable in form of words standing alone, from the presumption of intent used in Sandstrom. As indicated, Sandstrom and Francis surely make that form of mandatory presumption unconstitutional, as impermissibly likely to shift a burden of persuasion to the defendant, when the presumed fact is fully in dispute on the evidence in the case.
That leaves open the question, however, whether the same vice would attend the use of such a presumption when its only presumptive effect is in relation to constituent facts that had been taken out of issue by a defendant’s failure to meet a production burden imposed by the state.
On this point, I agree with the majority that the technical effect of a defendant’s failure to meet such a production burden should be treated as comparable to a judicial admission or evidence voluntarily offered by a defendant that concedes particular elements of a crime or any of its constituent facts. In such situations, the Supreme Court has recognized that burden-shifting presumptions whose only effect could have been in relation to facts taken out of issue by those unforced means cannot constitute constitutional error. See Connecticut v. Johnson, 460 U.S. 73, 87, 103 S.Ct. 969, 977, 74 L.Ed.2d 823 (1983).
Therefore, if production burdens may constitutionally be used to narrow the issues in a criminal case in this way, I agree that the same consequences should follow *181the concession of issues by that device. But I believe that whether they may constitutionally be used for this purpose is the very issue on which the Supreme Court has reserved decision, and which is squarely presented for decision here.
B.
That issue seems to me in turn to have two prongs: first, whether the use of any production burdens for this purpose is ipso facto unconstitutional; and second, if not, whether the use of the particular production burden here in issue is unconstitutional.
(D
I would first hold that the use of production burdens for this purpose is not ipso facto unconstitutional.
The unmistakable effect of production burdens such as that used here is to require a criminal defendant to “come forward” with at least a modicum of (“some”) evidence in order to hold the state to the full burden of persuasion with which it entered trial. At that time, based solely upon the defendant’s plea of the “general issue,” not guilty, the state’s burden was to prove beyond a reasonable doubt, unaided by any mandatory evidentiary presumption, all elements of the crime charged. A defendant’s failure to meet this burden inevitably reduces both the scope and the weight of that ingoing burden of persuasion borne by the state.
Put in that way, the threshold constitutional question is whether forcing such a practical reduction in the state’s persuasion burden by this means necessarily violates a defendant’s due process right, as declared in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), not to be convicted “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime ... charged.” That could only be held if the due process right is one absolutely fixed by the defendant’s general issue plea of not guilty so that he may not be compelled thereafter by any device to relieve the state of the full scope and weight of its burden of proof as originally cast by the plea.
Though Justice Black, dissenting in United States v. Gainey, 380 U.S. 63, 74-88, 85 S.Ct. 754, 761-768, 13 L.Ed.2d 658 (1965), expressed views which if adopted by the Court might well have led to that result, the opposite conclusion seems compelled by every later intimation on the subject by the Supreme Court.
The most direct such intimation is probably the observation in Mullaney itself that “[mjany States do require the defendant to show that there is ‘some evidence’ indicating that he acted in the heat of passion before requiring the prosecution to negate this element by proving the absence of passion beyond a reasonable doubt [citations omitted]. Nothing in this opinion is intended to affect that requirement.” Mullaney, 421 U.S. at 701 n. 28, 95 S.Ct. at 1891 n. 28; see also id. at 702, 703 n. 31, 95 S.Ct. at 1891, 1892 n. 31 (emphasis added). Nothing said in any later Supreme Court decision on the general subject suggests to me any change in that view,5 which obviously was based upon the Court’s perception that there was nothing so fundamentally unfair about production burden shifting devices as such that any and all forms violated due process. In the absence of any such indication of changed view on this since Mullaney, I think we must assume that the view there intimated still controls.
(2)
That leads to the second question, whether the production burden at issue here might however be found unconstitutional as violative of due process because of its particular structure.
There must of course be ultimate due process limits on the extent to which a state can force criminal defendants to pro*182duce evidence in order to hold potentially disputed elements of crimes charged to them at issue, and by this means to narrow the scope of the state’s ingoing burden of persuasion. As the Court pointed out in Tot v. United States, 319 U.S. 463, 469, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519 (1943), the government obviously cannot place on defendants the burden of producing evidence on all elements of the crime charged simply on the basis that an indictment has been returned. The question is, how far short of that, and on what basis, may the state go in this?
Because the underlying issue respecting the use of production burdens in general has not been definitively resolved by the Supreme Court, the question of their constitutional limits obviously has not been. I would find the limits in the same principles of connectional rationality that have been applied to determine the constitutionality of mandatory presumptions considered independently of any interrelated issue — narrowing production burdens. See Allen, 442 U.S. at 165-67, 97 S.Ct. at 2228-29; Tot, 319 U.S. at 468, 63 S.Ct. at 1245. The identical concerns of fundamental fairness are involved, though the context within which this must be judged is wider because of the need to take into account not only the basic and presumed facts of the culminating presumption, but the facts removed from issue by failure to meet the production burden.
To get at this, two inquiries are actually needed. The first is whether, looking only to the production burden, there is a fair and rational basis for requiring a criminal defendant to produce evidence on the particular elements or constituent facts on which evidence is required. Some facts obviously lend themselves by their very natures more fairly to this than do others. Without anticipating too broadly, it is obvious, for example, that requiring a defendant to produce alibi evidence to hold criminal agency itself in issue would present at least a different fairness problem than would requiring him to produce some evidence of non-intent in order to hold intent in issue, or of self-defense to negate unlawfulness.
Here I would have no problem finding a rational, hence fundamentally fair, basis for requiring a defendant to produce evidence of heat of passion provocation or self-defense in order to hold the elements of malice and unlawfulness, respectively, fully in issue in North Carolina murder prosecutions. These specific factual theories developed long ago in North Carolina common law as the means of negating the existence of malice and unlawfulness, once intentional killing with a deadly weapon was established. See Hankerson, 220 S.E.2d at 585, 586, 588. As such, they are in fact of the very substantive fabric of North Carolina common law murder as now codified, see id., 220 S.E.2d at 586. By nature, each of these negating defenses lends itself readily to direct evidence that is necessarily available to a defendant. On the other hand, they do not, in common experience, relate to circumstances so likely to be in play in the run of homicides that it would be unfair to require at least some evidence of their existence in order to raise a triable issue in particular cases. The burden imposed is the ultimately modest one merely of producing “some” evidence.
The second inquiry is essentially that one mandated by the line of pre-Mullaney Supreme Court decisions represented by Tot, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), as recently reviewed and reaffirmed in Allen, 442 U.S. at 165-67, 99 S.Ct. at 2228-29. That inquiry looks to the internal rationality of the presumption that in the case before us is the culminating element in the total issue-narrowing evidentiary device. It asks the question whether common experience demonstrates so rational a connection, looking to the “run of cases,” between the basic facts and the presumed facts of the presumption that in a circumstance where the prosecution relies entirely upon the presumption to prove the elemental fact, a jury could infer the presumed or elemental fact from the basic fact beyond a reasonable doubt. See Allen, 442 U.S. at 167, 99 S.Ct. at 2230.
I would hold that the presumption, analyzed in that fuller context, meets that stringent test. Grounded in a long history *183of applications running back to English common law origins, see Hankerson, 220 S.E.2d at 588, and widespread in variant forms in contemporary state practice, see Mullaney, 421 U.S. at 701, 702 n. 28, 95 S.Ct. at 1891 n. 28, it reflects “reason and experience,” which though dependent “upon a view of relation broader than that a jury might take in a specific case,” Tot, 319 U.S. at 467-68, 63 S.Ct. at 1245, satisfies the “reasonable doubt” test of accuracy in the run of cases.
Perhaps no more need be said, nor can be said, than that in common experience any time a killing is done intentionally with a deadly weapon under circumstances containing no suggestion that it was done in suddenly provoked passion or in self-defense, the most rational inference — certainly one that could be drawn beyond a reasonable doubt from those circumstances— is that it was done “with malice” (not in suddenly provoked passion) and “unlawfully” (not in justifying self-defense). This describes the connectional structure of this presumption, with its proven basic facts put in total circumstantial context by the lack of any evidence suggesting the possibility of a heat of passion or self-defense explanation.6 The presumption therefore possesses the requisite connectional rationality to pass due process muster on that score.
C.
Finally, a review of the record discloses that the trial judge properly concluded that in this case there was no evidence of heat of passion nor of self-defense. Accordingly, there was no constitutional impediment on that basis for invoking the presumption.
For the foregoing reasons, I would hold the presumption and the related burden of production not unconstitutional as applied in this case.
. As stated by the Francis Court, the question that has been reserved is “whether a mandatory presumption that shifts only a burden of production to the defendant is consistent with the Due Process clause.” This parallels other references to the procedural device by the Court, e.g., that in County Court of Ulster County v. Allen, 442 U.S. 140, 158 n. 16, 99 S.Ct. 2213, 2226 n. 16, 60 L.Ed.2d 777 (1979): “[t]o the extent that a presumption imposes an extremely low burden of production, [etc.].”
My statement of the reserved question in somewhat different form, emphasizing placement of the production burden as the focal, originating element in the overall procedural device, does not I think, reflect any but a semantic difference. A chicken-or-egg situation is involved. Whether the presumption "imposes" or “shifts” the burden of production, or whether placement of the burden of production, followed by failure to carry it, “raises” the presumption, has no significance in analyzing the constitutionality of the total evidentiary device. Certainly I have not intended to recast the issue in a form substantively different from that actually contemplated by the Court.
. Under North Carolina law, heat of passion provocation at least reduces the homicide to voluntary manslaughter; self-defense exonerates. See Hankerson, 220 S.E.2d at 589.
. These principles are reflected in the semi-official pattern jury instructions manual currently in use in North Carolina trial courts. In critical part, this directs that the mandatory instruction as used in this case is to be used only “if there is no evidence in the case that the defendant acted in the heat of passion or in self-defense.” On the other hand, the manual directs that “[i]f there is evidence of heat of passion or self defense,” the jury should be instructed that "you may infer first, that the killing was unlawful, and second, that it was done with malice, but you are not compelled to do so. You may consider this along with all other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice.” North Carolina Pattern Instructions— Criminal 206.30, p. 4, n. 3 (June 1985 ed.).
. See note 2, supra.
. Indeed, in Allen, the Court, adverting to its observations on the subject in Mullaney and to its consideration of such presumptions in preMullaney decisions such as Tot v. U.S., 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), observed that "[t]o the extent that a presumption imposes an extremely low burden of production —e.g., being satisfied by ‘any’ evidence — it may well be that its impact is no greater than that of a permissive inference and it may be proper to analyze it as such.” Allen, 442 U.S. at 158 n. 16, 99 S.Ct. at 2225 n. 16.
. Under this analysis, malice and unlawfulness are not taken wholly out of issue by failure to meet the production burden. Only the potentially negating defenses of heat of passion and self-defense are. The burden of persuasion remains upon the state to prove beyond a reasonable doubt the constituent facts of intent and deadly weapon use which, as a matter of developed substantive law, constitute malice and unlawfulness in the absence of heat of passion or self-defense. Faithful to this narrowing of the potential issues related to malice and unlawfulness, the presumption-based instruction submits the issues of malice and unlawfulness for proof by the state beyond a reasonable doubt, but with no opportunity to find them negated by the unprofferred defenses.
in this process, the persuasion burden is expressly placed upon the state with respect to the only disputed facts related to malice and unlawfulness. The actual effect of the presumption therefore is merely to submit the malice and unlawfulness issues in their constitutionally narrowed form in accordance with state substantive definitions of the crime. See Hankerson, 220 S.E.2d at 588 ("The mandatory presumption is simply a way of stating our legal rule that in the absence of evidence of mitigating or justifying factors all killings accomplished through the intentional use of a deadly weapon are deemed to be malicious and unlawful”).