Also known as: permissive presumption · permissive inference
Written by attorneys · grounded in primary & secondary sources — see below
A jury instruction that permits but does not require the factfinder to infer a presumed fact from proof of a basic fact. The instruction leaves the jury free to accept or reject the inference and does not shift the prosecution's burden of proving every element beyond a reasonable doubt.
Paula Pierce, a mall security guard, drew her handgun and fired once at a fleeing shoplifter's back from close range. The bullet struck the victim's torso and killed him. At trial the judge instructed the jury that it could infer an intent to kill from Paula's intentional use of the handgun. The jury accepted the inference and convicted her of murder.
Pedro Pacheco and three companions were stopped in a car containing a loaded handgun in the trunk. The prosecution introduced evidence that Pedro had been seen placing an object in the trunk earlier that day. The judge gave a permissive-presumption instruction allowing the jury to infer that Pedro possessed the weapon. The jury declined to draw the inference and acquitted him.
Select any source to read its text and confirm it supports the definition.
Pablo Perez was charged with murder after pushing a victim off a balcony. The trial judge instructed the jury that it could presume Perez intended the natural consequences of his voluntary act. The Supreme Court later held that the instruction created an unconstitutional mandatory presumption rather than a permissible one.
Parker Phillips shot his wife during an argument. The trial court instructed the jury that the law presumes a person intends the ordinary consequences of his voluntary acts. The Supreme Court reversed the conviction because the instruction relieved the state of proving the required mental state beyond a reasonable doubt.
Priscilla Parks led a cross-burning on an African-American family's lawn. The state statute treated the burning as prima facie evidence of intent to intimidate. The Supreme Court held that the statute's mandatory presumption violated the First Amendment because it did not allow the jury to consider the full context.
Paul Peterson was found with recently stolen Treasury checks made out to other people. The trial judge instructed the jury that it could infer Peterson knew the checks were stolen from his unexplained possession. The Supreme Court upheld the instruction as a constitutionally permissible inference supported by common experience.
A permissive presumption merely authorizes the jury to draw an inference if it finds the basic fact. The jury remains free to reject the inference. A mandatory presumption requires the jury to find the presumed fact once the basic fact is proved and therefore violates due process by relieving the prosecution of its burden of proof.
Supporting sources
A permissive presumption is constitutional if there is a rational connection between the proven basic facts and the presumed fact and if the presumed fact is more likely than not to flow from the basic facts. The instruction must still leave the prosecution with the ultimate burden of proving every element beyond a reasonable doubt.
Supporting sources
No. A permissive presumption never shifts any burden to the defendant. It merely tells the jury that it may, but need not, infer the presumed fact. The prosecution retains the full burden of persuasion on every element.
Supporting sources
When a person intentionally uses a deadly weapon in a manner likely to cause death or serious bodily injury, the factfinder may draw a permissive inference that the person intended to kill. The jury is not required to draw the inference and the prosecution must still 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…