Also known as: permissive presumptions · permissive inference
Written by attorneys — see sources 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.
In March 1973, three adult male respondents and a sixteen-year-old girl were traveling in a Chevrolet on the New York State Thruway when the car was stopped for speeding. Police observed two loaded handguns weighing approximately six pounds in an open handbag on the front floor or seat beside the girl, who admitted the bag belonged to her. A machinegun and heroin were discovered in the trunk after it was pried open. The four were tried together in Ulster County Court for possession of the handguns and trunk items. The trial judge instructed the jury regarding the statutory presumption that the presence of firearms in the automobile constituted evidence of possession by all occupants. The jury found the three adult males guilty of handgun possession but acquitted everyone of the trunk charges. The convictions were affirmed by the Appellate Division without opinion. The New York Court of Appeals also affirmed. The respondents sought federal habeas corpus relief in the Southern District of New York. The district court granted the writ on the ground that the presumption could not support the convictions on these facts. The Second Circuit affirmed the grant of the writ, though on the basis that the statute was unconstitutional on its face. The Supreme Court granted certiorari to consider the procedural and substantive issues raised by the lower federal courts' decisions.
View casePiper 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.
On July 21, 1983, Rockford, Illinois, police detectives purchased certain magazines from the two petitioners, each of whom was an attendant at an adult bookstore. Petitioners were subsequently charged separately with the offense of obscenity for the sale of these magazines under the then-current version of the Illinois obscenity statute, Ill. Rev. Stat., ch. 38, ¶ 11-20 (1983). Each petitioner moved to dismiss the charges on the ground that the statute violated the First and Fourteenth Amendments. They argued, among other things, that the statute was unconstitutional in failing to require that the value question be judged solely on an objective basis as opposed to reference to contemporary community standards. Both trial courts rejected this contention and instructed the respective juries to judge whether the material was obscene by determining how it would be viewed by ordinary adults in the whole State of Illinois. Both petitioners were found guilty. Both petitioners appealed to the Illinois Appellate Court, Second District. That court also rejected petitioners’ contention that the issue of value must be determined on an objective basis and not by reference to contemporary community standards. The Illinois Supreme Court denied review, and the United States Supreme Court granted certiorari. The statute under which petitioners were convicted has since been repealed and replaced by a statute that does not call for the application of community standards to the value question.
View casePaul 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.
David Sandstrom, an 18-year-old, confessed on November 22, 1976, to the slaying of Annie Jessen. Based on the confession and corroborating evidence, he was charged on December 2 with deliberate homicide under Montana law for purposely or knowingly causing her death. At trial, Sandstrom's attorney told the jury that although his client admitted killing Jessen, he did not do so purposely or knowingly and was therefore guilty only of a lesser crime. The defense relied on testimony from two court-appointed mental health experts describing Sandstrom's mental state, attributing the killing to a personality disorder aggravated by alcohol consumption. The prosecution requested, and over defense objection the trial judge delivered, the instruction that the law presumes a person intends the ordinary consequences of his voluntary acts. The jury found Sandstrom guilty of deliberate homicide, and he was sentenced to 100 years in prison. Sandstrom appealed to the Supreme Court of Montana, which upheld the conviction. The United States Supreme Court granted certiorari to review the constitutionality of the instruction.
View casePortia 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.
Virginia Code Annotated § 18.2-423 makes it unlawful for any person, with the intent of intimidating any person or group of persons, to burn or cause to be burned a cross on the property of another, a highway, or other public place. The statute further provides that any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons. In 1998 three individuals were separately convicted under this statute in two incidents. Barry Black was convicted for leading a cross burning at a Ku Klux Klan rally on private property in Carroll County. Richard Elliott and Jonathan O'Mara were convicted for burning a cross on the lawn of their African-American neighbor James Jubilee in Virginia Beach. The Court of Appeals of Virginia affirmed the convictions of both Elliott and O'Mara. The Supreme Court of Virginia consolidated the appeals and held the statute unconstitutional on its face. The United States Supreme Court granted certiorari in 2002 to review the decision.
View casePinnacle 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.
In June and July 1971, petitioner James Edward Barnes opened a checking account under the name Clarence Smith. He later deposited four United States Treasury checks totaling over $800 into that account. The checks had been mailed by the United States Disbursing Office in San Francisco on July 1 and July 3 to four individuals: Nettie Lewis, Albert Young, Arthur Salazar, and Mary Hernandez. Each check bore endorsements in the payees' names and a second endorsement by Clarence Smith. At trial in the United States District Court, the four payees testified that they had never received, endorsed, or authorized endorsement of the checks. A government handwriting expert testified that Barnes had made the Clarence Smith endorsements on all four checks and the payees' signatures on two of them. A postal inspector testified regarding statements Barnes made after his arrest, in which Barnes claimed he received the checks from door-to-door furniture salespeople, that the checks were already signed when he received them, and that he could not identify the salespeople or provide records of the transactions. Barnes did not testify at trial. The District Court instructed the jury that possession of recently stolen property, if not satisfactorily explained, ordinarily permits an inference that the possessor knew the property was stolen. The jury returned guilty verdicts on all six counts, and the court imposed concurrent three-year prison sentences. The Court of Appeals for the Ninth Circuit affirmed the convictions on the possession counts. The Supreme Court granted certiorari to review the case.
View caseA 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…