Burden of Proof and Presumptions in Criminal Cases
Criminal Law Bulletin, Vol. 44, No. 16, p. 1, 2009
33 Pages Posted: 26 Feb 2009
Date Written: February 1, 2009
The constitutional application of a presumption in a criminal case is controlled by three less than well reasoned partially inconsistent unfortunately confusing decisions of the United States Supreme Court, i.e., New York v. Allen, 442 U.S. 140 (1979), Sandstrom v. Montana, 442 U.S. 510 (1979) and Frances v. Franklin, 476 U.S. 307 (1985).
Nevertheless, the following propositions are suggested as consistent with the Supreme Court's overall teachings in the area of criminal presumptions:
(1) A conclusive or irrebuttable presumption operating against a criminal defendant is unconstitutional.
(2) The burden of persuasion with respect to an element of a crime as defined may never be shifted to a criminal defendant by means of a presumption.
(3) Since a verdict on an element of the criminal charge may not be directed against an accused, the burden of production with respect to an element of a crime as defined may never be shifted to the defendant. Unfortunately the Supreme Court, when given an opportunity to confirm that the burden of production may not be shifted because a verdict may not be directed in a criminal case against the accused and that an instruction to the jury that they "must find" is the functional equivalent, did not decide the question.
"We are not required to decide in this case whether a mandatory presumption that shifts only a burden of production to the defendant is consistent with the Due Process Clause, and we express no opinion on that question." Francis v. Franklin, 471 U.S. 307, 314 n. 3, 105 S.Ct. 1965, 1967 n. 3, 85 L.Ed.2d 344 (1985).
(4) Accordingly, since a presumption is a rule of law which requires that the existence of the presumed fact be taken as established in the absence of evidence to the contrary, presumptions operating against the accused can never exist in criminal cases. Clearly any statute containing the term presumption, presumed, or prima facie, should and will be interpreted to create a mandatory presumption and thus be unconstitutional.
(5) The trier of fact may, however, be instructed with respect to the inference that arises from the basic fact to the inferred fact provided there is a sufficient rational connection between the basic fact and the fact to be inferred. Whether sufficient rational connection exists between the basic fact and the fact to be inferred to warrant the giving of an instruction, or the particular instruction given, depends not only upon the natural strength of the logical inference but also upon the wording of the particular instruction given. Rational connection also varies depending on whether the fact to be inferred is an element of the offense or negates a defense or whether the fact to be inferred has a lesser effect. However at a minimum for an instructed inference to be given the court must determine that the fact to be inferred more probably than not flows from the basic fact. The more probably true than not true threshold standard is imposed to prevent the jury from overvaluing the weight to be given to the inference having a lesser probative value simply because the inference is instructed by the court.
(a) If the fact to be inferred has a lesser effect, a rational connection exists when the natural inference arising from the basic fact, if proved to be more probably true than not true, to the inferred fact, is sufficient to support a finding by a reasonable juror that the inferred fact is more probably true than not true. Under such circumstances the trier of fact may be instructed that if they find the basic fact, they may, but are not required to, infer from this fact the inferred fact. This may be called an instructed factual inference.
(b) If the fact to be inferred is an element of a crime or negates a defense, if a sufficient rational connection exists the jury may be instructed that if they find the basic fact beyond a reasonable doubt, they may, but are not required to, infer the inferred fact. A sufficient rational connection exists if the court determines that proof of the basic fact establishes the fact to be inferred to be more probably true than not true. Of course, inferences having less probative value going to an element or negating a defense are relevant and may be argued by counsel to the jury. However, such inferences may not be instructed. The existence of the inferred fact may be submitted to the jury to determine if, but only if, a reasonable juror on the evidence as a whole, including evidence of the basic fact, could find the inferred fact beyond a reasonable doubt. This may be called an instructed elemental inference.
(c) When the fact to be inferred is an element of a crime or negates a defense, if a sufficient rational connection exists, the jury may be instructed that if they find the basic fact exists beyond a reasonable doubt the law declares that they may, but are not required to regard the basic fact as sufficient evidence of the inferred fact. Arguably equivalent but far less desirable language for such an instruction includes that the basic fact is "prima facie evidence," is "presumptive evidence" or that from the basic fact the inferred fact may be "presumed." A sufficient rational connection exists if the court determines that a reasonable juror could find from the basic fact alone that the inferred fact has been established beyond a reasonable doubt. Moreover, the existence of the fact to be inferred may be submitted to the jury to determine if, but only if, a reasonable juror on the evidence as a whole, including evidence of the basic fact, could find the inferred fact beyond a reasonable doubt. This may be called an instructed prima facie inference.
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