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Defenses: An Initial Survey

Constitutional Aspects of Presumptions

Presumptions in criminal cases as to elements of the crime are subject to constitutional scrutiny. Establishing a “conclusive” presumption against the defendant would obviously conflict with the requirement that the prosecution carry the burden of proving every element. In re Winship, 397 U.S. 358 (1970) (see Chapter 1). But what about lesser, “rebuttable” presumptions? Could a presumption shift to the defendant the burden of disproving an element? And what of those presumptions that try to “smoke out” the defendant, or that don’t require, but merely “allow,” the jury to reach conclusions?

In Allen v. Ulster County Court, 442 U.S. 140 (1979), and Sandstrom v. Montana, 442 U.S. 510 (1979), the Supreme Court divided such devices into “mandatory” presumptions and “permissive” inferences. Presumptions that actually shift the burden of proof on such elements—or could be misconstrued by the jury as doing so—are unconstitutional. Devices that only shift the burden of going forward on an element, however, are constitutional, if there is a sufficient connection between A (the predicate fact) and B (the presumed fact).

The degree of the relation between A and B that is necessary to allow the presumption to survive a constitutional challenge would depend on the exact instructions given by the judge to the jury. If the judge instructed the jurors that if they found A, the defendant had the burden of going forward on B, the connection between A and B would have to be beyond a reasonable doubt (mandatory presumption). If, however, the judge did not instruct the jury on this matter, but simply allowed the prosecutor to get the case to the jury, or was very clear that the inference was permissive, not requiring rebuttal by the defendant, the connection would have to be merely more likely than not (permissive inference).

The Supreme Court’s opinion in Allen reflects this insight. Four defendants, including a minor in the passenger seat of a borrowed car, were stopped on the New York State Thruway by a state trooper, who testified that he saw guns protruding from the minor’s purse. Upholding the conviction of the three adult defendants for possession of these guns, the Court allowed the use of a statutory presumption that all persons in a car are “in possession” of a firearm found therein. But it did so only after noting that the instruction to the jurors had emphasized that they should consider all the facts, including the age of the minor, the fact that the defendants had all driven several hundred miles, and the fact that that the trooper had seen some furtive movements just before he approached the car. In such circumstances, said the Court, the judge had actually instructed the jury using a permissive inference rather than a presumption, rebuttable or otherwise. Moreover, the instruction stressed that the jurors need not rely on this presumption, and that they were the sole deciders of fact.[1]

[1] Justice Powell dissented in Allen. While agreeing with the majority that if the jury had found that the guns were where the trooper said they were, the presumption would be valid, he argued that the jury might have relied on the presumption (“anywhere in the car”) and not made specific findings as to where the guns actually were. Thus, he argued, the majority’s opinion was flawed by its assumption that the jury had not relied on the presumption. But Powell’s fear, while obviously a serious concern, is undercut by the verdict in Allen itself, since the jury acquitted the defendants of possessing firearms and drugs that were both in the trunk of the car. Had the jury relied solely on the presumption (which did not differentiate among areas of the car), it would have convicted on all counts.

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