State's Burden of Production As To Elements of the Crime

• Jurisdiction: Maryland

II. State's burden of production as to elements of the crime

A. Basic elements of every criminal case

1. Actus reus (criminal act) elements

The actus reus in a criminal case is (a) the prohibited conduct; and/or (b) the defendant's failure to act when required to act. Every criminal offense has at least one prohibited actus reus, and some offenses have more than one prohibited actus reus. The actus reus is "the what" of the criminal offense. Chow v. State, 393 Md. 431, 464 (2006); Harris v. State, 353 Md. 596, 600 (1999); Garnett v. State, 332 Md. 571, 577-78 (1993).

2. Mens rea (criminal mental state) elements

The mens rea in a criminal case is the prohibited mental state, i.e., the level of moral blameworthiness necessary to make the actus reus a crime. Almost all criminal offenses require proof of at least one mens rea, and some offenses have more than one mens rea. On the other hand, a small number of criminal offenses are strict liability offenses, requiring no mens rea, with the actus reus alone establishing criminal liability. In Morissette v. United States, 342 U.S. 246, 251 (1952), the Supreme Court held that there must be a "concurrence of an evil-meaning mind with an evil-doing hand. . . ."

3. Criminal agency

Criminal agency determines which one or more individuals is/are responsible for the crime(s). Criminal agency is "the who" of the criminal offense. Voluntariness of the act is part of criminal agency because the defendant is not usually accountable for involuntary acts. LaFave, Criminal Law § 6.1(c), at 322-24 (5th ed. 2010).

B. Who selects the elements of a criminal offense?

For common law offenses, the elements evolved over hundreds of years through judge-made law and may still be evolving. For statutory offenses, the legislature establishes the elements. This includes statutory versions of common law offenses and offenses that were unknown to the common law. If a statute is enacted for conduct that was a common law crime, there is no presumption that the statute repeals the common law, unless the statute so provides. However, if "a statute and the common law are in conflict, or where a statute deals with an entire subject-matter, the rule is otherwise, and the statute is generally construed as abrogating the common law as to that subject." Robinson v. State, 353 Md. 683, 693 (1999).

C. Burden of production is on the State as to the elements

1. Direct evidence of elements

Direct evidence is testimonial evidence, documentary evidence, and physical evidence in one or more of the following forms: (a) sworn testimony from the witness stand, MPJI-Cr 3:00; (b) physical evidence, documents, and exhibits, MPJI-Cr 3:00; (c) sworn depositions and affidavits, MPJI-Cr 3:03; (d) stipulations as to testimony or physical evidence, MPJI-Cr 3:02B; and (e) agreed statements of fact. MPJI-Cr 3:02A.

With a stipulation, the State and the defendant stipulate that evidence can be produced, which, if believed, will establish a fact. The parties do not necessarily agree that the fact actually exists, and it is presented to the jury as any other fact in dispute. See MPJI-Cr 3:02B. In Barnes v. State, 31 Md. App. 25 (1976), the Court of Special Appeals stated that "[t]he agreement is to what the evidence will be, not what the facts are." Id. at 35. With an agreed statement of facts, the State and the defendant agree to the existence of a fact and not just to the existence of evidence that would support that fact. MPJI-Cr 302A.

There may be confusion because the terms "stipulation" and "agreed statement of facts" are often used interchangeably. Barnes, 31 Md. App. at 35-36. For an agreed statement of facts, there is no fact-finding function for the jury to perform; for a stipulation, there is a fact-finding function for the jury to perform. Id. at 35.

2. Circumstantial evidence of elements

Circumstantial evidence is the process of drawing permissible inferences of fact by inferring one thing from another thing. See Angulo-Gil v. State, 198 Md. App. 124, 152-53 (2011); Breakfield v. State, 195 Md. App. 377, 393 (2010) (intent may be inferred from circumstantial evidence); Ware v. State, 170 Md. App. 906, 29 (2006). Based on life experience, finders of fact constantly draw inferences of fact or find circumstantial evidence.

In Robinson v. State, 315 Md. 309 (1989), the Court of Appeals recognized: "There is nothing mysterious about the use of inferences in the fact-finding process. Jurors routinely apply their common sense, powers of logic, and accumulated experiences in life to arrive at conclusions from demonstrated sets of facts." Id. at 318. See Nichols v. State, 5 Md. App. 340, 350 (1968).

In Hall, 119 Md. App. 377, the Court of Special Appeals noted that circumstantial evidence "is entirely sufficient to support a conviction, provided the circumstances support rational inferences from which the trier of fact could be convinced beyond a reasonable doubt of the guilt of the accused." Id. at 393 (citing Jackson, 443 U.S. 307; Bloodsworth v. State, 307 Md. 164, 167 (1986)). Reliance on circumstantial evidence does not change the standard of proof for establishing guilt. Elland v. State, 92 Md. App. 56, 68 (1992), rev'd on other grounds, 330 Md. 261 (1993). Circumstantial evidence may establish guilt, but not if it only arouses suspicion. White v. State, 363 Md. 150, 163 (2001).

Inferences of fact are sometimes referred to as presumptions of fact, which is incorrect because presumptions have the practical effect of shifting the burden of production, but inferences of fact do not shift the burden of production. Instead, inferences of fact are merely a means of satisfying the burden of production, usually in conjunction with direct evidence.

In Smiley v. State, 138 Md. App. 709 (2001), the Court of Special Appeals stated: "[T]here exists no difference between direct evidence and circumstantial evidence." Id. at 718 (citing Mangum v. State, 342 Md. 392 (1996); In re Daniel S., 103 Md. App. 282 (1995)).

In Hebron v. State, 331 Md. 219 (1993), the Court of Appeals noted: "The rationale underlying the giving of the circumstantial evidence instruction . . . is the notion that circumstantial evidence is inherently suspicious and less trustworthy than direct evidence. That proposition is not universally accepted." Id. at 225. See Wilson, 319 Md. at 537; Wagner v. State, 160 Md. App. 531, 560 n.22 (2005); Painter v. State, 157 Md. App. 1, 11 (2004); Hall, 119 Md. App. at 392-93; Hagez v. State, 110 Md. App. 194, 203-04 (1996).

Direct evidence is virtually always augmented by circumstantial evidence. See Evans v. State, 28 Md. App. 640, 702-03 (1975), aff'd, 278 Md. 197 (1976). Implicitly admitted into evidence are all facts that rationally flow from one or more directly established facts. An inference of fact, like all direct and circumstantial evidence, may be believed or disbelieved by the finder of fact, whether or not that fact is contradicted.

The legal logistics of circumstantial evidence operate as follows: Assume that there is direct evidence admitted that tends to establish the existence of fact #1. During the burden of production phase, it is assumed (although it is not yet known) that fact #1 will be believed to exist when the finder of fact is in the burden of persuasion phase. This does not mean that fact #1 has been proven because proof is a burden of persuasion issue for the jury.

The burden of persuasion is of no concern at the burden of production phase, which is concerned only with whether there is sufficient evidence that has been admitted that could—may or may not, but, at least, could—persuade the finder of fact beyond a reasonable doubt. Whether it does persuade the finder of fact is addressed at the burden of persuasion phase.

If there is direct evidence that tends to establish fact #1, fact #2 may be established circumstantially, i.e., fact #2 may be inferred. Even with no direct evidence of fact #2, if there is a constitutional relationship between fact #1 and fact #2, it is permissible to infer the existence of fact #2 from the existence of fact #1. Again, like with fact #1, a rational relationship does not necessarily mean that fact #2 has been proven, but it means that the burden of production has been satisfied as to fact #2, and there is sufficient circumstantial evidence of fact #2 to permit the finder of fact to be persuaded.

The Due Process Clause of the Fifth Amendment (against the federal government) and the Due Process Clause of the Fourteenth Amendment (against state and local governments) prohibit inferring fact #2 from fact #1 unless there is a rational connection between those facts. A rational connection exits if it can be stated, with substantial assurance, that it is more likely than not that the existence of the inferred fact (fact #2) flows from the existence of the known fact (fact #1). Leary v. United States, 395 U.S. 6, 36 (1969); see Tot v. United States, 319 U.S. 463, 467-68 (1943).

In Dinkins v. State, 29 Md. App. 577 (1976), the Court of Special Appeals stated that an illogical or improbable inference would unconstitutionally lessen the State's burden of production. Id. at 583 n.8 (quoting Evans, 28 Md. App. at 703-04). In Boyer v. State, 107 Md. App. 32 (1995), the Court of Special Appeals held:

[A] statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of a lack of the two in common experience. [W]here the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them it is not competent for the legislature to create it. . . .

Id. at 45-46 (quoting Tot, 319 U.S. at 467-68).

Thus, implicitly admitted into evidence are all facts that rationally flow from (a) one or more directly established facts; or (b) a combination of directly or circumstantially established facts. In Evans, 28 Md....