§ 8.03 PERMISSIVE PRESUMPTIONS ("INFERENCES")

• Jurisdiction: United States

§ 8.03. Permissive Presumptions ("Inferences")

A permissive presumption is one in which the fact finder may, but need not, find the existence of the presumed fact upon proof of the basic fact.

A permissive presumption is not a true presumption. It is more accurately described as an "inference." An inference is not a rule that formally shifts the burden of proof from one party to another, as a true presumption does. Rather, an inference is a (hopefully) logical bridge between one fact believed to be true and a second fact, the truth of which is at issue. For example, a New Jersey homicide statute provides that, in prosecution of a driver for recklessly causing a death in his automobile, "[p]roof that the defendant was operating a hand-held wireless telephone while driving a motor vehicle . . . may give rise to an inference that the defendant was driving recklessly."⁷ Here, a jury "may" infer Fact B (recklessness) from proof of Fact A (operating a cell phone while driving), if the jury chooses to cross the inferential bridge from Fact A to Fact B, but it need not do so.

Because permissive presumptions, or inferences, do not formally affect the prosecution's constitutional obligation to prove every element of an offense beyond a reasonable doubt, they are not unconstitutional per se.⁸ Nonetheless, an inference is constitutionally impermissible if there is no rational connection between the basic fact and the presumed (inferred) fact. As the Court explained in Tot v. United States,⁹ "where the inference [created] is so strained as not to have a reasonable relation to the circumstances of life as we know them," the fact-finding process is rendered unreliable, and the defendant is denied due process of law.

An inference is rational if, but only if, the presumed fact more likely than not flows from the basic fact.¹⁰ For example, an appellate court held that a trial judge should not have instructed the jury that it could infer criminal recklessness upon proof that the defendant drove slightly in excess of the maximum lawful speed limit.¹¹ In these circumstances, the inferred fact did not, more likely than not, flow from the basic fact. On the other hand, it is rational, and therefore permissible, for a jury to infer that "any person who enters or remains unlawfully in a building . . . [has the] intent to commit a crime . . . therein."¹²

The constitutionality of a permissive presumption often depends on the particular facts of the case. For example, in County...