Concept

Presumptions on Elements

Burdens of proof and persuasion

Presumptions on Elements

A presumption links two facts. Once a basic fact is established, the law treats a presumed fact as established, or at least as more likely, and in civil litigation the usual effect is to move the burden of producing evidence to the opponent, who ends the presumption's force by offering some evidence that the presumed fact is false. That device works well when the only question is which side must come forward. It collides with the criminal trial when the presumed fact is an element of the offense, since the prosecution must prove every element beyond a reasonable doubt.¹ A presumption that did the proving would let a conviction rest on a collateral fact that never persuaded anyone the element was true. Criminal law therefore allows presumptions on elements only in a form that leaves the jury's own finding in place, and the rest of this section follows that form from the constitutional limit to the Model Penal Code's two-step procedure.

The constitutional limit has two halves, and each rests on a different reason. Once the government defines a crime, it may not use a presumption to shift the burden of persuasion on an element to the defendant, and the burden of production cannot be shifted either, because a verdict may not be directed against a criminal defendant as a matter of law.² The persuasion half follows from how that burden works: the party who carries it loses the issue if the jury cannot be moved to the required degree of certainty, and in a criminal case that party is the prosecution.³ A presumption that made the defendant disprove an element would reverse that risk, so that a jury left undecided about the element would convict. The production half follows from the verdict rule. If proof of a basic fact obliged the defendant to produce evidence or lose the element, the court would in effect decide the element against the accused without a jury finding, and a court has no power to do that.

The cautionary example is Mullaney v. Wilbur, where, as the Court read Maine law, malice aforethought, an element of murder, was presumed from an intentional and unlawful killing and the defendant had to rebut it by proving heat of passion.⁴ The Court struck that arrangement down because the defendant was being asked to disprove an essential element of the prosecution's case.⁵ When the Court later described that holding in Patterson v. New York, it explained that shifting the burden of persuasion "with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause."⁶ The phrase "proved or presumed" names the working idea: a legislature that treats a fact as essential to guilt cannot satisfy the Constitution by presuming that fact against the accused. Apprendi v. New Jersey later set the question aside as not before it, observing that the case raised no issue about a State's power to manipulate the prosecutor's burden by relying on a presumption rather than evidence to establish an element, and it pointed to Mullaney and Sandstrom v. Montana as the decisions on that subject.⁷

The constitutional cases sort presumptions by how strongly they bind the jurors. In Sandstrom the jury was told that a person intends the ordinary consequences of his acts, and the Court held the instruction unconstitutional because jurors may have read it as compelling a finding of intent, or even as shifting to the defendant the burden of proving the absence of intent. Francis v. Franklin reached the same result on a similar charge.⁸ The reviewing court asks what a juror could have understood the charge to require, so the exact wording of the instruction matters more than the statute's label. A presumption that the instructions make plainly optional stands on firmer ground.

County Court of Ulster County v. Allen shows that firmer ground. A gun was found in a car carrying several passengers, and New York law allowed the jury to infer each passenger's possession from presence in the car if the jurors saw fit. The instructions told the jury that the prosecution still had to prove possession beyond a reasonable doubt and left the jurors free to weigh all the facts. The Court sustained the presumption under a rational-connection test, noting that the gun was large, within reach of every passenger, and sticking out of the bag of the only minor passenger, a sixteen-year-old girl.⁹ What separates the two cases is the force of the instruction: Sandstrom's charge could be heard as a command, while the Ulster County charge was a permission the jurors could decline. For a clearly permissive presumption the test asks only for a rational, common-sense connection between the basic and presumed facts as they appear in the case, and a somewhat stronger presumption faces a stricter version, under which the basic fact must justify a rational conclusion of the presumed fact beyond a reasonable doubt.¹⁰

The Model Penal Code builds this line into a procedure with two steps. The first step decides whether the presumed fact reaches the jury at all: when there is evidence of the facts that give rise to the presumption, the issue of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly negatives the presumed fact.¹¹ Because the court cannot direct a verdict against the accused, the presumption cannot take the element from the jury, and it cannot require the accused to produce anything. Even if the defense offers no evidence, the jury receives the question. The exception runs in one direction only. A court may withhold the presumed fact when the record clearly negatives it, which protects the accused, but the Code gives the court no matching power to declare the presumed fact established.

The second step governs what the jury is told. When the presumed fact is submitted, the court must charge that the presumed fact must, on all the evidence, be proved beyond a reasonable doubt, while the law declares that the jury may regard the facts giving rise to the presumption as sufficient evidence of the presumed fact.¹² The two halves of the charge do separate work. The first half keeps the burden of persuasion with the prosecution and measures the jury's finding against all the evidence, including whatever the defense offered, so the basic facts never stand in for the finding itself. The second half carries the permission, and its operative verb is permissive, which places the Code's presumption on the Ulster County side of the line and away from Sandstrom. The proposed federal rule on presumptions against the accused, which was never enacted, took the same general shape: the judge could not direct a finding of the presumed fact, and when that fact was an element the jury had to be told it must be proved beyond a reasonable doubt on all the evidence.¹³

Hypothetical Illustration

A state code follows the Model Penal Code and creates a presumption that a person who buys goods at a small fraction of their value from a stranger knows the goods are stolen. Reyes is charged with receiving stolen property, and the prosecution proves that he paid forty dollars for a new television from a seller in a parking lot. Reyes offers no evidence. Because there is evidence of the basic facts, the court submits knowledge to the jury, since nothing in the record clearly negatives it. The court then charges that knowledge must be proved beyond a reasonable doubt on all the evidence, while the jury may regard the price and the circumstances of the sale as sufficient evidence of it. The jurors remain free to acquit if they are not persuaded, and Reyes's silence does not remove that freedom.

Change one fact. The same code instead directs the jury that, once the basic facts are shown, it shall find that the defendant knew the goods were stolen unless the defendant proves otherwise. Knowledge is an element, the presumption now does the prosecution's persuading, and the defendant must carry the risk of an undecided jury. The charge is impermissible, and it would fail even without the final clause, because jurors told to find an element once a collateral fact appears have had a finding directed against the accused.

The first scene tracks the Code's two steps. The second is the Maine problem in a new setting, since a fact the legislature treats as essential to guilt is presumed against the defendant, who must disprove it.¹⁴ The Code also addresses presumptions it did not create. A presumption not established by the Code, or one inconsistent with it, has whatever consequences other law gives it.¹⁵ A statutory or common-law presumption from outside the Code therefore goes back to the constitutional tests above, where the question is how the instruction would strike a juror.

The presumption of innocence belongs to a different category. A presumption on an element has a basic fact and a presumed fact, but the presumption of innocence has neither. It is a basic component of a fair trial that states where the burden sits, namely that the accused enters court with nothing to establish. No collateral fact triggers it and no collateral fact rebuts it, so it never raises the problem this section addresses. On an exam, the usual error is to judge an instruction by its label. A charge that says the law presumes a fact can be valid, and a charge that avoids the word can be invalid, because the test is whether jurors could understand that they must find the element once the basic fact appears, or that the defendant must disprove it.¹⁶

Exam Analysis Steps

Because an exam may present either a Code presumption or an instruction from outside the Code, the analysis runs best as a short sequence that sorts the presumption first and then tests its effect on the jury. The steps are these:

Identify the basic fact and the presumed fact, and ask whether the presumed fact is an element of the offense, since the limits taught here protect the prosecution's burden on elements.
Ask whether the Code created the presumption, and if it did not, recognize that its consequences come from other law and move to the constitutional test in step 4.
For a Code presumption, confirm that the issue goes to the jury when there is evidence of the basic facts unless the evidence as a whole clearly negatives the presumed fact, and that the jury is charged that the presumed fact must be proved beyond a reasonable doubt on all the evidence while the basic facts may be regarded as sufficient evidence of it.
For any other presumption, read the instruction for its force, reject it if jurors could understand it to require a finding of the element or to make the defendant disprove it, and uphold a plainly permissive version only if a rational connection links the basic fact to the presumed fact.

Presumptions on Elements

Endnotes17