§ 5.09 Criminal Presumptions
| Jurisdiction | United States |
Neither Rule 301 nor any other rule of evidence governs presumptions in criminal cases. The Supreme Court proposed a rule on criminal presumptions (proposed Federal Rule 303), but it was not enacted by Congress.43 The Uniform Rules of Evidence contain a provision based on the Supreme Court proposal, including a rule on jury instructions.44
[A] Criminal Presumptions Defined
As with presumptions in civil cases, confusing terminology is responsible for many of the problems involving presumptions in criminal cases.
Presumption of innocence. The presumption of innocence is not a true presumption; the accused is not required to prove any basic fact in order to trigger the presumption of innocence. Rather, the "presumption of innocence" is the traditional way of stating that the burden of persuasion lies with the prosecution.45
Presumption of sanity. Another example of confusing terminology is the so-called "presumption of sanity." Again, this is not a true presumption; there is no basic fact that must be proved. The "presumption of sanity" merely allocates to the accused the initial burden of producing evidence of insanity. Commentators have argued that rules allocating burdens of proof, such as the presumptions of innocence and sanity, should be labeled "assumptions."46 In the case of insanity, however, it makes more sense to simply treat it as an affirmative defense.47
Civil-criminal distinction. Even if "assumptions" are distinguished from presumptions, problems of terminology remain. Although the term "presumption" is used in both criminal and civil cases, a presumption operates differently in the criminal context than in a civil case. The difference arises from constitutional limitations on the allocation of the burden of proof.
The common law presumption concerning possession of recently stolen property illustrates this point. In a civil case, establishment of the basic fact (possession of recently stolen property) would automatically establish the presumed fact (the possessor stole the property), unless rebutted. The effect of the presumption would be to shift, at the very least, the burden of production to the opposing party. If that party failed to satisfy its burden of production, a directed verdict on that issue would follow. In a criminal case, however, an accused cannot constitutionally suffer a directed verdict.48
Thus, although the term presumption is often used in criminal cases, the effect of such a presumption generally is only that of an inference; the jury should be instructed only that it may find the inferred fact without any mention of the words "presume" or "presumption."
[B] Constitutionality of Criminal Presumptions
A second difference between criminal and civil presumptions involves the test for reviewing the constitutionality of presumptions. In Tot v. United States,49 the Supreme Court held that in a criminal case a "presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed."50 The rational connection test was further defined by the Court in Leary v. United States:51"[U]nless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend," the presumption violates due process.52 In Leary, the Court raised, but did not decide, the issue of whether a criminal presumption that involves an essential element of the offense must also satisfy the "beyond the reasonable doubt" standard.53
In Ulster County Court v. Allen,54 the Court changed direction, recognizing two types of criminal presumptions: mandatory and permissive. The police stopped an automobile, in which three male adults and a 16-year-old girl were riding, for a speeding violation. Two handguns were spotted in the girl's handbag, and a subsequent search of the trunk revealed a machinegun and heroin. All occupants were charged with illegal possession of weapons and heroin. The state's case was buttressed by a New York statute which provided, with certain exceptions, that the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle.
The Court upheld the presumption as applied to the facts of the case. Allen represents a departure from the Court's prior decisions. As noted above, the Court appeared to have established two principles concerning the prosecution's use of a presumption that relates to an element of the charged offense...
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