Sunday, February 7, 2016

This is the first in a series of several blog posts on statutory presumptions in criminal prosecutions, many of which deal with guns and drugs (presumption that all occupants possess a firearm found in a vehicle [Penal Law § 265.15(3)]; presumption that all occupants of a vehicle knowingly possess controlled substance not concealed on a occupant’s person [Penal Law § 265.25(1)]; presumption of knowing possession by all occupants of controlled substances or marijuana in open view in a room used as a drug factory [Penal Law § 220.25(2)]).  As noted in Handling a Criminal Case in New York (Muldoon, Thomson Reuters, § 1:33 [2015-2016]) “these function as ‘shortcuts’ to allow the prosecution to establish an element of a crime by establishing other facts. 

In future installments I intend to examine presumption stacking, a defendant’s burden to rebut a presumption once invoked, and may also take a separate excursion into common law presumptions: innocence, sanity, competence, regularity, and finality.  But for today, the more basic underlying question: Why do we need or allow these shortcuts?  

We know that to be constitutional, presumptions must be permissive, not mandatory (Sandstrom v Montana, 442 US 510 [1979]).  So why do we have them at all?  In the absence of a presumption, the prosecution can argue that the jury should reach the same conclusion concerning possession or intent as is suggested by the presumption, and the jury could elect to do so.  Consider, for example, the knowing (or not) possession of gun in room or car –  intent and knowledge are virtually always issues in any criminal prosecution and rarely known or knowable with any certainty, and the fiction of our judicial system that they are knowable with consistently repetitive certainty is as true in cases involving presumptions as in any other.  The use of a presumption therefore, gives the prosecution a legislatively-conferred leg up, where none is needed, and the net effect is the watering down of the constitutionally-required burden of proof. 

In Leary v United States, 395 US 6, 33 [1969], the Supreme Court held that “a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.”  Presumptions, then, are justified by the claim that the ultimate fact flows from and is likely true where the underlying inferential facts are proven to exist.  But such claims are not based on any empirical evidence, but rather, hunches, guesses, and “experience” (whatever that means) that is little better than resort to old wives tales and war stories.  

In truth, presumptions represent an unnecessary legislative concession in the absence of any direct evidence that tilts the jury in the direction of a finding that the missing facts are true, basing a verdict on that finding, which a jury could make on its own, without the help of a presumption.  I suggest that real reason for presumptions is fear: the fear of not guilty verdicts where the prosecution has not proven the ultimate fact, resulting in too many probably guilty (but not proven to be so beyond a reasonable doubt) defendants going free, a socially unacceptable result.

Importantly, a presumption can act as the necessary lynch pin of the jury’s verdict.  An example is provided by People v Whitfield, 158 AD2d 922 [4th Dept 1990], where the prosecution failed to request that the jury could presume defendant’s knowing possession of stolen property from his recent and exclusive possession of the fruits of a crime.  Because there was no other evidence of knowing possession, the proof was held to be legally insufficient to support defendant’s conviction.  In other words, had the prosecution requested and the court instructed the jury on the presumption, that permissible inference could have formed the only basis establishing the element of knowing possession.

Importantly, presumptions may not be invoked where the underlying facts needed to support them are not present.  Be careful not to fall into the trap of assuming that because presumptions are present in the statute, they are available upon request in every case.  They are not (see People v Zekaj, 191 AD2d 663 [2nd Dept 1993]; People v Wilt, 105 AD2d 1089 [4th Dept 1984]).

Wilt (which is still good law), offers an important lesson.  In that case, the Fourth Department found the statutory presumption that all occupants of a vehicle are presumed to possess a weapon in the vehicle unconstitutional as applied to the defendant, who presented evidence that he was only in the vehicle for 5-6 minutes before it was stopped, never looked in the trunk (where the gun was found), and did not know there was a gun in the trunk.  The Court, reasoning that there was no “rational connection” between the discovery of the gun in the trunk and Wilt’s presumed possession, reversed his conviction and dismissed the indictment.

Along these lines recall that, going all the way back to the landmark presumptions case of Ulster County v Allen, 442 US 140 [1979], the Supreme Court held that resort to a presumption is improper where there is no rational way under the facts of the case for the fact-finder to presume the ultimate fact from the other facts in the case.  

Next time: problems presented by presumption stacking.

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