Also known as: permissive presumptions · permissive inference
Written by attorneys · grounded in primary & secondary sources — see below
An evidentiary device that permits but does not require the factfinder to infer a presumed fact from proof of a basic fact. The device leaves the trier free to accept or reject the inference and does not shift any burden of proof to the defendant.
Paige Porter drew a concealed handgun and fired once at Pedro Pacheco's back from close range as he fled a boutique. The bullet struck his torso and killed him. At trial the prosecution introduced evidence of the intentional discharge. The jury may infer from that basic fact that Porter intended to kill, though it remains free to reject the inference after considering her claim that she aimed only at his leg.
Penelope Price and three passengers rode in a car containing two handguns on the floorboard. Officers stopped the vehicle and found the guns. The prosecution offered a jury instruction that the presence of the weapons permitted an inference of knowing possession by every occupant. The instruction left the jury free to accept or reject the inference and did not require any defendant to produce evidence.
Select any source to read its text and confirm it supports the definition.
Piper Patel sold magazines that a jury later found obscene under a national standard. The trial court instructed the jury that it could infer the material lacked serious value if it failed a local test. The instruction merely permitted the inference and left the jury free to decide the ultimate question of obscenity on all the evidence.
Paul Peterson struck his roommate in the head with a baseball bat during an argument. The court instructed the jury that the law permits an inference that a person intends the ordinary consequences of a voluntary act. The instruction did not require the jury to draw the inference and preserved the prosecution's burden to prove intent beyond a reasonable doubt.
Portia Price erected a burning cross on the lawn of an African-American family. The prosecution offered an instruction that the jury could infer an intent to intimidate from the act of cross burning. The instruction permitted but did not compel the inference and left the jury free to consider all surrounding circumstances.
Pinnacle Holdings received several United States Treasury checks endorsed in blank. The prosecution proved recent possession of the checks and offered an instruction that the jury could infer knowledge they were stolen. The instruction allowed the inference but placed no burden on the defendant to rebut it.
A permissive presumption allows but never requires the factfinder to infer the presumed fact from the basic facts. A mandatory presumption requires the factfinder to find the presumed fact unless the defendant produces contrary evidence. Only the permissive form survives constitutional scrutiny because it leaves the burden of proof on the prosecution.
Supporting sources
The basic facts must have a rational connection to the presumed fact, and the presumed fact must be more likely than not to flow from the basic facts. The instruction must not relieve the prosecution of its burden to prove every element beyond a reasonable doubt.
Supporting sources
Yes. If under the facts of the particular case there is no rational way the trier could make the permitted connection, the instruction may undermine the reasonable-doubt standard and violate due process.
Yes. When a person intentionally uses a deadly weapon the factfinder may draw a permissive inference that the person intended to kill. The inference is not mandatory and the prosecution retains the burden to prove intent beyond a reasonable doubt.
Supporting sources
…a reasonable juror could have interpreted the instruction. Respondent argues, first, that the instruction merely described a permissive inference—that is, it allowed but did not require the jury to draw conclusions about defendant's intent from his actions—and that such inferences are constitutional. Brief for Respondent 3, 15. These…