Concept
Proving Intent by Inference
Required mental state
Proving Intent by Inference
The definitions of malice aforethought tell a prosecutor what must be shown about the defendant's mind, and a second question follows at once: how can a prosecutor prove what is in a defendant's head?1 The difficulty is genuine, because intent is invisible and no witness can point to it the way a witness can point to a gun. Prosecutors answer with the defendant's own pretrial statements, eyewitness testimony, physical evidence, and circumstantial evidence, and intent is often established by evidence of how the crime was committed.2 That last method is ordinary reasoning applied to a crime. A factfinder learns what the defendant did, with what, and to whom, and draws a conclusion about what the defendant meant by it.
Decided cases show the method at work. In Montana v. Egelhoff the Supreme Court observed that the defendant had to retrieve his handgun from a glove compartment before using it, and that each victim was shot once in the head in execution style, and it treated both facts as strong evidence that killing was his conscious object.3 In State v. Smith, a defendant had repeatedly threatened to kill officers by biting or spitting and then bit a sheriff's officer, and the court held that his violent assaults and threats before, during, and after the bite justified an inference of the criminal state of mind that attempted murder requires.4 In United States v. Lee, the court held that a jury could find intent to produce child pornography from the defendant's detailed planning, since he specified how many photographs he wanted of each girl and how each should pose.5 In each case the conclusion about intent came from conduct, and one pattern of conduct is common enough that the common law gave it a name.
The Deadly-Weapon Inference
When a person intentionally uses a deadly weapon, directed at a vital part of the victim's body, the factfinder may infer an intent to kill, and at common law that inference supplied the malice aforethought that murder requires.6 A deadly weapon is any instrument, or in some circumstances any part of the body, used in a manner calculated or likely to cause death or serious bodily injury.7 The definition looks to how the object is used rather than to what the object is, which explains why a fist or a kicking foot can qualify in the right circumstances while an ordinary tool in ordinary use does not.
Each element of the rule carries part of the reasoning. The requirement that the use be intentional matters because an accidental discharge reveals nothing about what the defendant wanted, while a deliberate act reveals a great deal. The requirements that the weapon be used in a deadly manner and aimed at a vital part matter because a person who aims an instrument at a spot where injury is likely to be fatal ordinarily wants the result the instrument is likely to produce. The broader maxim that people are taken to intend the natural and probable consequences of their intentional acts rests on the same experience, and an actor who knows that an act will cause death is deemed to have intended the death.8
The controlling word in the rule is permissive. The jury may draw the inference, and the jury may refuse to draw it, even after finding that the weapon was used intentionally against a vital part. The inference is one piece of circumstantial evidence that the jury weighs with everything else in the case, including testimony that the shot was an accident or that the defendant acted under provocation, and it leaves the prosecution with the burden of persuading the jury of intent beyond a reasonable doubt. Leaving the choice with the jury follows from the allocation of functions that governs civil trials as well: credibility determinations, the weighing of evidence, and the drawing of legitimate inferences belong to the jury rather than the judge.9 A rule telling the jury that it must find intent whenever the weapon facts appear would take that function away, and the next sub-section shows why the Constitution objects to such rules.
The pair differs in one fact, whether the weapon was used intentionally, and that fact decides whether the inference exists at all. The inference also supplies only one route to malice. A jury that declines it can still find malice through another route if other evidence proves an intent to inflict grievous harm or depraved-heart recklessness.
Inference Versus Presumption
The word permissive carries weight because the same reasoning can be packaged as a mandatory rule, and the Constitution treats the two packages differently. A footnote in Mullaney v. Wilbur draws the line: the prosecution ordinarily bears both the burden of producing evidence and the burden of persuading the factfinder, and a presumption requires, while a permissible inference permits, the factfinder to conclude that a presumed or inferred fact is established once other facts are proved.13 Because either device in effect calls on the defendant to produce some evidence contesting that fact, both must satisfy due process requirements.14 A device that requires the conclusion presses much harder on those requirements than one that merely allows it, since the first removes the factfinder's choice and the second preserves it.
Mullaney itself shows what a mandatory device does to a mental-state element. Maine treated every intentional or criminally reckless killing, absent justification or excuse, as felonious homicide punished as murder by life imprisonment, unless the defendant proved by a preponderance of the evidence that he acted in the heat of passion on sudden provocation, in which case the punishment was a fine of up to $1,000 or imprisonment for up to 20 years.15 The question was whether that rule comports with the due process requirement that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime charged.16 The Court held that it does not, because the presumption cast on the defendant the burden of proving heat of passion.17 Under the Maine scheme, proof of an intentional, unlawful killing carried the case to murder unless the defendant disproved the mitigating state of mind, so the prosecution never had to persuade the jury about the mental state that separated life imprisonment from manslaughter. The Court later described Mullaney as rejecting the argument that a State may avoid that requirement by redefining the elements that distinguish crimes, since murder and manslaughter carry substantially different consequences.18
The same defect appeared in a jury instruction in Sandstrom v. Montana, where the jurors were told that "the law presumes that a person intends the ordinary consequences of his voluntary acts."19 The jurors were not told that they had a choice or that they might infer the conclusion, so a reasonable juror could have read the instruction as mandatory.20 The Court identified two possible mandatory readings: an irrebuttable direction to find intent once the triggering facts were proved, or a direction to find intent unless the defendant proved the contrary, which shifts the burden of persuasion.21 Either reading relieves the State of proving intent beyond a reasonable doubt, so the instruction was unconstitutional, as the earlier decisions refusing to let a legal presumption take intent from the jury had indicated.22 Even the older statement that a killing with a deadly weapon is presumed malicious until the contrary appears never lifted the prosecution's burden: in Davis v. United States, a murder case in which the defense was insanity, the Court held that guilt cannot be regarded as proved if the jury entertains a reasonable doubt on all the evidence about whether the defendant was legally capable of committing crime.23
Students lose this issue when they treat the weapon inference as a rule the defendant must rebut, because a permissive inference leaves the burden of persuasion with the prosecution and the decision with the jury.24
On an exam stem, the wording of the instruction decides the issue. Language telling jurors they may infer intent, while the prosecution keeps its burden, is the permissive form. Language saying that the law presumes intent, or that puts on the defendant the task of disproving it, is the form that raises the due-process problem.