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29. Is the instruction proper?
A defendant is being tried for the murder of a woman who disappeared 10 years ago and has not been heard from since. Her body has never been found. The prosecutor has presented strong circumstantial evidence that she was murdered by the defendant. To help establish the fact of her death, the prosecutor has requested that the judge give the following instruction, based on a recognized presumption in the jurisdiction: «A person missing and not heard from in the last seven years shall be presumed to be deceased.»
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The accused in a criminal case is presumptively innocent until the prosecution proves every element of the offense beyond a reasonable doubt. Accordingly, it is clear that in criminal cases, «presumptions» cannot shift the burden of producing evidence or of persuading the fact finder to the accused. A «presumption» in a criminal case is truly nothing more than a permissible inference.
If a presumption in a criminal case is considered mandatory, it is subjected to much more stringent constitutional scrutiny. If the presumption shifts the burden of persuasion to the defendant, it will be normally unconstitutional if the presumed fact is an element of the crime. This is because such a presumption runs afoul of the constitutional principle that the prosecution must prove each element of the crime beyond a reasonable doubt. See Francis v. Franklin, 471 U.S. 307 (1985).
B is correct. The instruction is improper because it violates due process for a judge to give a mandatory jury instruction in a criminal case that effectively shifts the burden on an element of the charged crime to the defendant. Such an instruction is unconstitutional because the phrase «shall be presumed» could be interpreted by the jury as shifting the burden of proof to the defendant or as requiring the jury to find an element of the charged crime, neither of which is permissible.
A is incorrect. This answer reaches the correct answer with the wrong reasoning. It is true that the conclusion of death does not necessarily follow a person's long-time disappearance. However, to be constitutional, a presumption or inference does not have to be certain; it only needs to be rational and to follow more likely than not. The presumption in the requested instruction meets that standard. However, it nevertheless violates due process because the phrase «shall be presumed» could be interpreted by the jury as shifting the burden of proof to the defendant or as requiring the jury to find an element of the charged crime, neither of which is permissible.
C is incorrect. Even if the presumption expresses a rational conclusion, the jury may not be instructed on it because it effectively shifts the burden away from the prosecution from having to prove each element of the crime beyond a reasonable doubt, in violation of the defendant's due process rights.
D is incorrect. Even if the defendant were given an opportunity to rebut the presumption with contrary evidence of the woman's aliveness, giving the instruction would still be unconstitutional, for the reasons explained above.