Cite as: 515 U. S. 506 (1995)
Rehnquist, C. J., concurring
instruction was erroneous in light of the "question presented and the State's failure to raise this issue below").
As with many aspects of statutory construction, determination of what elements constitute a crime often is subject to dispute. See, e. g., National Organization for Women, Inc. v. Scheidler, 510 U. S. 249, 262 (1994) (holding that "RICO contains no economic motive requirement"); United States v. Culbert, 435 U. S. 371, 380 (1978) (declining to limit the Hobbs Act's scope to an undefined category of conduct termed "racketeering"). "[I]n determining what facts must be proved beyond a reasonable doubt the [legislature's] definition of the elements of the offense is usually dispositive." McMillan v. Pennsylvania, 477 U. S. 79, 85 (1986). Nothing in the Court's decision stands as a barrier to legislatures that wish to define—or that have defined—the elements of their criminal laws in such a way as to remove issues such as materiality from the jury's consideration. We have noted that " '[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute.' " Staples v. United States, 511 U. S. 600, 604 (1994) (quoting Liparota v. United States, 471 U. S. 419, 424 (1985)); see also McMillan, supra, at 85. Within broad constitutional bounds, legislatures have flexibility in defining the elements of a criminal offense. See Patterson v. New York, 432 U. S. 197, 210 (1977). Federal and state legislatures may reallocate burdens of proof by labeling elements as affirmative defenses, ibid., or they may convert elements into "sentencing factor[s]" for consideration by the sentencing court, McMillan, supra, at 85-86. The Court today does not resolve what role materiality plays under § 1001.
The Court properly acknowledges that other mixed questions of law and fact remain the proper domain of the trial court. Ante, at 520-521. Preliminary questions in a trial regarding the admissibility of evidence, Fed. Rule Evid. 104(a), the competency of witnesses, ibid., the voluntariness
525
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