C. NESSON, REASONABLE DOUBT AND PERMISSIVE INFERENCES: THE VALUE OF COMPLEXITY
92 Harv. L. Rev. 1187, 1208-1213 (1979)
LACK OF SATISFACTORY EXPLANATION
It should be clear by this point that the concept of reasonable doubt is inconsistent with a procedure that permits an otherwise unassisted leap from aggregate likelihood to a conclusion of guilt in a specific case. There is, however, a frequent limitation on permissive inferences which, to some, has appeared to solve the problem: the factfinder typically is only allowed to infer the requisite conclusion from the predicate fact if there is a lack of satisfactory explanation. In Gainey, for example [the case from which the Moonshine problem was drawn, United States v. Gainey, 380 U.S. 63 (1965)], the jury was told that it was permitted to infer from the presence of the defendant at the still that he was operating the still, "unless the defendant ... explains such presence to the satisfaction of the jury.'' The statute unsuccessfully challenged in [Turner v. United States, 396 U.S. 398 (1970)] placed a similar qualification on the jury's authority to infer importation and knowledge from possession of heroin. If an inference can legitimately be drawn from a failure to explain a suggestive circumstance, that additional datum could bridge the gap between aggregate likelihood and a conclusion beyond reasonable doubt in the specific case. Moreover, if a defendant understands that an adverse inference will be drawn from the lack of a satisfactory explanation, the conclusion that there is no innocent explanation becomes more logical when he fails to offer one. Indeed, the statutory declaration of the permissive inference may be seen as notifying the defendant of the circumstances in which his passivity in defending will be counted against him. This, however, presents an obvious fifth amendment problem: is it constitutional to draw an inference against the defendant from his refusal to defend?
The fifth amendment is not a guarantee of acquittal. If the prosecution has offered proof which is sufficient to warrant a conclusion of guilt beyond reasonable doubt, a defendant may feel considerable pressure to take the stand and dispute the prosecution's case. Practically speaking, it may be his only chance for acquittal. The "compulsion'' which the defendant feels in such a case is the natural consequence of the prosecution's presentation of a strong case, and clearly does not result in any violation of the fifth amendment.
But the situation created by permissive inferences is different. If proof of the predicate fact is sufficient to warrant a conclusion beyond reasonable doubt, then the case is no different from other cases in which the prosecution survives a motion for a directed verdict and puts to the defendant the strategic choice of testifying or not. If, on the other hand, proof of the predicate fact alone is not sufficient to warrant a conclusion of guilt beyond reasonable doubt, then the permissive inference instruction, by requiring the defendant to put forward a satisfactory explanation, significantly changes the situation. Now it is not simply the force of the prosecution's proof which warrants a verdict and puts pressure on the defendant to testify. The defendant's decision not to explain himself becomes an essential part of the prosecution's case, and the pressure to testify now comes from the statutory inference which the jury is invited to draw from the lack of any satisfactory explanation.
This fifth amendment problem implicit in permissive inferences was first raised before the Supreme Court in 1925, in Yee Hem v. United States. The case involved a prosecution for concealing imported opium. The trial judge had instructed the jury in the terms typical of the federal narcotics presumption: whenever the defendant is shown to have possessed opium, "such possession shall be deemed sufficient evidence to authorize conviction [i.e., for the jury to find knowledge and importation] unless the defendant shall explain the possession to the satisfaction of the jury.'' Yee Hem challenged this permissive inference on the grounds that the "satisfactory explanation'' clause made the permissive inference an unconstitutional burden on his right to remain silent.
The Supreme Court, by its own admission, "put aside'' the question "with slight discussion.'' The permissive inference, said the Court, "compels nothing'':
It leaves the accused entirely free to testify or not as he chooses. If the accused happens to be the only repository of the facts necessary to negative the presumption arising from his possession, that is a misfortune which the statute under review does not create but which is inherent in the case. The same situation might present itself if there were no statutory presumption and a prima facie case of concealment with knowledge of unlawful importation were made by the evidence.... [T]he constraint upon him to give testimony would arise there, as it arises here, simply from the force of circumstances and not from any form of compulsion forbidden by the Constitution.
There are two basic flaws in this reasoning. First, it ignores the question which this Article poses: can the prosecution be considered to have offered a prima facie case of knowledge and importation merely by proving possession? The Court in Yee Hem merely assumed an affirmative answer. Second, even if proof of mere possession could constitute a prima facie case, and thus constitutionally impel the defendant to explain his possession, it does not follow that the jury may be told that it can supplement the prosecution's case with an inference based on the defendant's silence. In Griffin v. California, the Court examined the difference between a conviction based on the strength of the prosecution's case and one based on the prosecution's case supplemented by an inference drawn from the defendant's decision not to testify, and held that neither prosecutor nor judge may urge the jury to draw an adverse inference from a defendant's silence.
The Court's language in the latter case is particularly germane here. The remarks of the prosecutor and the judge in Griffin were held to violate the privilege against self-incrimination because the California rule permitting comment upon the defendant's silence by the prosecutor was "in substance a rule of evidence that allows the State the privilege of tendering to the jury for its consideration the failure of the accused to testify.'' Griffin held that "when the court solemnizes the silence of the accused into evidence against him,'' the state is in practical effect exercising that compulsion which the fifth amendment forbids.
If one accepts the proposition that the aggregate likelihood presupposed by the permissive inference is not itself enough to sustain a verdict beyond reasonable doubt, then any attempt to draw additional strength for the permissive inference from the defendant's lack of explanation means necessarily that the defendant's silence is functioning as an added piece of "evidence,'' "solemnized'' by the statute and the jury instruction. Griffin thus suggests that permissive inferences must stand or fall on the strength of the inference to be drawn from the predicate fact, unaided by any inference from the lack of satisfactory explanation.
The best defense of the "lack of satisfactory explanation'' language against fifth amendment challenge is not to deny that an inference is being drawn from the lack of a satisfactory explanation, but to argue that the explanation could have come from witnesses other than the defendant, and therefore that no inference is being drawn from the defendant's failure to testify. This argument, however, conveniently glosses over the fact that the defendant is the obvious person from whom the jury would expect explanation, particularly so in cases involving issues of intent and knowledge, issues which permissive inferences often address. The "unless satisfactorily explained'' instruction, however phrased, is thus likely to be understood by jurors as an invitation to draw an inference from the defendant's silence. This in itself might be considered enough to invalidate it.
But there is a more fundamental weakness in the argument: it assumes that it is constitutional to require a defendant to put on a defense. A defendant cannot be constitutionally required to come forward with a defense unless the prosecution has first met its burden of proof. As Wigmore long ago explained, the presumption of innocence is merely a corollary of the rule that the prosecution must adduce evidence and produce persuasion beyond reasonable doubt; and by reason of this rule, the accused "may remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion.''(1)84 The question, then, of whether any inference may be drawn from a defendant's failure to provide a satisfactory explanation, even if he might be able to do so by calling witnesses other than himself, depends upon whether the prosecution has first discharged its burden of production. But if the analysis so far presented in this Article is credited, the proof of the predicate fact of a permissive inference cannot by itself meet that burden, and therefore cannot provide a constitutional basis for authorizing an inference to be drawn against the defendant who fails to come forward with a defense. If the prosecution can only overcome the presumption of innocence by meeting its burden of persuasion, then allowing the prosecution to discharge this burden by means of any inference based on the defendant's failure to defend is inconsistent with the presumption of innocence.
1. 84. 9 J. Wigmore on Evidence §2511, at 407.