United States v. Dube
520 F.2d 250 (1st Cir. 1975)
 

Before COFFIC, C.J., MCENTEE and CAMPBELL, JJ.

MCENTEE, J. Defendant Dube was tried on an indictment charging him with robbery of a federally insured bank. He did not deny that he committed the robbery, but introduced the testimony of a psychiatrist and a psychologist that he was insane when he committed the offense. The prosecution did not present expert opinion evidence but relied instead on cross-examination and the lay testimony of two bank tellers and Dube's accomplice to rebut his case. Dube moved for a judgment of acquittal on the ground that the prosecution had failed as a matter of law to sustain its burden of proving his sanity beyond a reasonable doubt, but the motion was denied. The jury returned a verdict of guilty and Dube appeals.

A criminal defendant is presumed sane, but the introduction of evidence of insanity dispels the presumption and subjects the prosecution to the burden of proving sanity beyond a reasonable doubt. Beltran v. United States, 302 F.2d 48, 52 (1st Cir. 1962).... There is no general principle that the prosecution must counter defendant's expert medical evidence with expert testimony of its own. The expert testimony is not conclusive even where uncontradicted; its weight and credibility are for the jury to determine, and it may be rebutted in various ways apart from the introduction of countervailing expert opinion.(1)1

We do not think the evidence in this case was such that a reasonable man must necessarily have entertained doubts as to defendant's sanity. Both Dr. Voss, the psychiatrist, and Dr. Bishop, the psychologist, testified that in their opinion defendant was a schizophrenic and substantially incapable of conforming his conduct to the requirements of the law at the time of the crime. They arrived at those diagnoses nearly five months after the robbery and only a week before trial. Dr. Voss's opinion was based on two hours of interviews and Dr. Bishop's on a one-hour interview and three hours of intelligence and personality testing....

Most importantly, Dr. Voss's diagnosis was based almost entirely on the subjective history narrated by defendant and his counsel, see United States v. Ingman, 426 F.2d 973 (9th Cir. 1970), and Dr. Bishop undoubtedly interpreted the test results in light of the history he received. Both testified that they were able to detect malingering and that defendant could not fabricate a history suggesting schizophrenia, but of course a jury would not be bound to believe these assertions. Id. Indeed the factual assumptions they derived from Dube's narrative, on which they predicated their conclusions, did not comport with the testimony at trial. On the basis of defendant's statements, both regarded the robbery as compulsive and irrational, but the testimony of Mrs. Kyllonen, the accomplice, furnished abundant evidence of a carefully planned and executed crime. The experts' testimony also seemed to rest in part on the notion that bank robbery is an irrational activity in the first place, making the competence of a bank robber at least suspect. Both concluded that defendant was shy, a "loner,'' unable to form emotional attachments to others, but Mrs. Kyllonen testified that she was in love with defendant, that they had lived together for as long as three weeks before the robbery and that they had arranged to get back together after defendant disposed of some stolen checks in New York. She also testified that during the period immediately after the robbery she did not notice anything peculiar about defendant's activities....

We agree with our concurring brother that the prosecution was remiss in not offering psychiatric testimony of its own. However, on all the evidence we think the court correctly allowed the case to go to the jury. See United States v. Coleman, [501 F.2d 342 (10th Cir. 1974)].

Affirmed.

CAMPBELL, J. (concurring).

I find this a difficult case to analyze though, on the facts, I concur in the result. The court dwells on the inadequacy of the psychiatrist's and psychologist's diagnoses. While in certain respects I think it is overly critical, I agree that the jury was entitled to be skeptical of opinions of insanity based upon relatively brief examinations made several months after the crime and at a time when Dube had everything to gain from a finding of insanity....

Still it is not simple to identify the affirmative evidence from which the jury could find defendant sane beyond a reasonable doubt. Certain conclusions, could, it is true, be drawn from Dube's girl friend's description of his conduct before and after the crime. She had lived with Dube for several weeks and was in his company when he fled. While the defense argues that by selecting a bank to rob on the spur of the moment, Dube behaved in a bizarre manner, this behavior does not necessarily compel an inference of mental abnormality; and his conduct during and after the robbery, including precautions to avoid detection such as discarding the gun and driving to a city where he felt the police were less likely to be on the lookout, seems rational enough. The two tellers, who saw him briefly during the robbery, observed nothing bizarre, and the jury was able to add to this evidence its own observations of Dube while in the courtroom. Thus, there was evidence that Dube at certain times had behaved in a way which, to the average eyes, might seem normal. Still one wonders by what standard the fleeting glimpses of behavior transmitted by Dube's girl friend and the tellers allowed a finding of sanity beyond a reasonable doubt.(2)* Dr. Voss, the psychiatrist, testified that the girl friend's version of Dube's behavior was consistent with a diagnosis of schizophrenia. Whether or not that is so, it is questionable whether her association with Dube was extensive enough, and her behavioral testimony detailed enough, to permit a positive diagnosis of sanity either by a layman or an expert.

Yet not without some hesitation I think the jury was entitled to receive help from another quarter. In Davis v. United States, 160 U.S. 469 (1895), the Supreme Court did not characterize the presumption of sanity as belonging to that category of presumption which vanishes once the defense shows evidence of insanity. Instead, it stated, "If the whole evidence, including that supplied by the presumption of sanity, does not exclude beyond a reasonable doubt the hypothesis of insanity, of which some proof is adduced, the accused is entitled to an acquittal....'' 160 U.S. at 488 [Emphasis supplied].

Except for the quoted reference in Davis (which was the case that established the federal rule requiring the prosecution to prove sanity beyond a reasonable doubt) there has been little attention paid in federal cases to whether the presumption of sanity, once questioned, continues to have evidentiary force. Some courts, like the court here, see it as a presumption that evaporates once evidence of insanity is introduced. Yet viewed as a common sense inference that a person without marked symptoms to the contrary is likely to be sane, I think the presumption is entitled to be given reasonable weight in determining whether on all the evidence the Government gets to a jury....

In the present case, given the evidence of an ability to function normally, and an absence of evidence of abnormal behavior, I think the jury could summon assistance from the inference, or presumption, that Dube was sane. Evidence bearing upon insanity has never been restricted to expert evidence. Conduct, lay observations and even lay opinions have traditionally been given much weight. 2 J. Wigmore, Evidence, 227 et seq. (3d ed. 1940). And the jury could add to factors such as the reasonableness of Dube's conduct before and after the crime and his apparent lack of any history of mental disturbance, an inference of sanity drawn from its common experience that most people (at least those without marked outward symptoms) are sane. With the aid of this inference it could reach the conclusion that he was sane beyond a reasonable doubt. I recognize that this rationale is not without its difficulties, but it seems more satisfying than to pretend that the Government's meager evidence of Dube's conduct established, or could establish, by itself, much of anything.

Had there been somewhat less evidence of ordinary behavior, or slightly stronger evidence of abnormality, reversal might be in order. But without condoning the Government's failure to call an expert or otherwise bolster its case I think the issue was properly submitted to the jury.



Does Dube present a problem of allocation or presumption? Suppose the court had recognized that a burden of persuasion could have been placed on the defendant without altering the degree of certainty to which the insanity issue had to be proved; i.e., suppose that the court had imposed on the defendant the burden of persuading the jury that there was at least a doubt about his sanity? Would that approach have solved the problem here? Would it have been constitutional?

Recall that the major historical debate with civil presumptions has been between the "bursting bubble'' and the "shifting burden'' approaches, with the first criticized for producing too slight an effect and the second for producing too great an effect. Would a workable middle ground be an approach that keeps the degree of certainty fixed but simply changes the direction from which the parties come at it? It seems to be so in the criminal context but not in the civil. The reciprocal of the plaintiff proving that an element is more probable than not would seem to be the defendant proving that the element is "as likely as not.'' But how does this differ from total ignorance?

See Eule, The Presumption of Sanity: Bursting the Bubble, 25 U.C.L.A. L. Rev. 637 (1978).

COUNTY COURT OF ULSTER CITY v. ALLEN

442 U.S. 140 (1979)

Mr. Justice STEVENS delivered the opinion of the Court.

A New York statute provides that, with certain exceptions, the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all persons then occupying the vehicle. The United States Court of Appeals for the Second Circuit held that respondents may challenge the constitutionality of this statute in a federal habeas corpus proceeding and that the statute is "unconstitutional on its face.'' 568 F.2d 998, 1009. We granted certiorari to review these holdings and also to consider whether the statute is constitutional in its application to respondents. 439 U.S. 815.

Four persons, three adult males (respondents) and a 16-year-old girl (Jane Doe, who is not a respondent here), were jointly tried on charges that they possessed two loaded handguns, a loaded machinegun, and over a pound of heroin found in a Chevrolet in which they were riding when it was stopped for speeding on the New York Thruway shortly after noon on March 28, 1973. The two large-caliber handguns, which together with their ammunition weighed approximately six pounds, were seen through the window of the car by the investigating police officer. They were positioned crosswise in an open handbag on either the front floor or the front seat of the car on the passenger side where Jane Doe was sitting. Jane Doe admitted that the handbag was hers. The machinegun and the heroin were discovered in the trunk after the police pried it open. The car had been borrowed from the driver's brother earlier that day; the key to the trunk could not be found in the car or on the person of any of its occupants, although there was testimony that two of the occupants had placed something in the trunk before embarking in the borrowed car. The jury convicted all four of possession of the handguns and acquitted them of possession of the contents of the trunk.

Counsel for all four defendants objected to the introduction into evidence of the two handguns, the machinegun, and the drugs, arguing that the State had not adequately demonstrated a connection between their clients and the contraband. The trial court overruled the objection, relying on the presumption of possession created by the New York statute. Tr. 474-483. Because that presumption does not apply if a weapon is found "upon the person'' of one of the occupants of the car, ... the three male defendants also moved to dismiss the charges relating to the handguns on the ground that the guns were found on the person of Jane Doe. Respondents made this motion both at the close of the prosecution's case and at the close of all evidence. The trial judge twice denied it, concluding that the applicability of the "upon the person'' exception was a question of fact for the jury....

At the close of the trial, the judge instructed the jurors that they were entitled to infer possession from the defendants' presence in the car. He did not make any reference to the "upon the person'' exception in his explanation of the statutory presumption, nor did any of the defendants object to this omission or request alternative or additional instructions on the subject....

In this case, the Court of Appeals undertook the task of deciding the constitutionality of the New York statute "on its face.'' Its conclusion that the statutory presumption was arbitrary rested entirely on its view of the fairness of applying the presumption in hypothetical situations--situations, indeed, in which it is improbable that a jury would return a conviction, or that a prosecution would ever be instituted. We must accordingly inquire whether these respondents had standing to advance the arguments that the Court of Appeals considered decisive. An analysis of our prior cases indicates that the answer to this inquiry depends on the type of presumption that is involved in the case.

Inferences and presumptions are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of an element of the crime--that is, an "ultimate'' or "elemental'' fact--from the existence of one or more "evidentiary'' or "basic'' facts. E.g., Barnes v. United States, 412 U.S. 837, 843-844; Tot v. United States, 319 U.S. 463, 467; Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35, 42. The value of these evidentiary devices, and their validity under the Due Process Clause, vary from case to case, however, depending on the strength of the connection between the particular basic and elemental facts involved and on the degree to which the device curtails the factfinder's freedom to assess the evidence independently. Nonetheless, in criminal cases, the ultimate test of any device's constitutional validity in a given case remains constant: the device must not undermine the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364; Mullaney v. Wilbur, 421 U.S., at 702-703, n.31.

The most common evidentiary device is the entirely permissive inference or presumption, which allows--but does not require--the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant. See, e.g., Barnes v. United States, supra, at 840 n.3. In that situation the basic fact may constitute prima facie evidence of the elemental fact. See, e.g., Turner v. United States, 396 U.S. 398, 402 n.2. When reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him. Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the "beyond a reasonable doubt'' standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.

A mandatory presumption is a far more troublesome evidentiary device. For it may affect not only the strength of the "no reasonable doubt'' burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts. In this situation, the Court has generally examined the presumption on its face to determine the extent to which the basic and elemental facts coincide. To the extent that the trier of fact is forced to abide by the presumption, and may not reject it based on an independent evaluation of the particular facts presented by the State, the analysis of the presumption's constitutional validity is logically divorced from those facts and based on the presumption's accuracy in the run of cases. It is for this reason that the Court had held it irrelevant in analyzing a mandatory presumption, but not in analyzing a purely permissive one, that there is ample evidence in the record other than the presumption to support a conviction.

Without determining whether the presumption in this case was mandatory, the Court of Appeals analyzed it on its face as if it were. In fact, it was not, as the New York Court of Appeals had earlier pointed out. 40 N.Y.2d, at 510-511, 354 N.E.2d, at 840.

The trial judge's instructions make it clear that the presumption was merely a part of the prosecution's case, that it gave rise to a permissive inference available only in certain circumstances, rather than a mandatory conclusion of possession, and that it could be ignored by the jury even if there was no affirmative proof offered by defendants in rebuttal. The judge explained that possession could be actual or constructive, but that constructive possession could not exist without the intent and ability to exercise control or dominion over the weapons. He also carefully instructed the jury that there is a mandatory presumption of innocence in favor of the defendants that controls unless it, as the exclusive trier of fact, is satisfied beyond a reasonable doubt that the defendants possessed the handguns in the manner described by the judge. In short, the instructions plainly directed the jury to consider all the circumstances tending to support or contradict the inference that all four occupants of the car had possession of the two loaded handguns and to decide the matter for itself without regard to how much evidence the defendants introduced.

Our cases considering the validity of permissive statutory presumption such as the one involved here have rested on an evaluation of the presumption as applied to the record before the Court. None suggests that a court should pass on the constitutionality of this kind of statute "on its face.'' It was error for the Court of Appeals to make such a determination in this case.

III

As applied to the facts of this case, the presumption of possession is entirely rational. Notwithstanding the Court of Appeals' analysis, respondents were not "hitchhikers or other casual passengers,'' and the guns were neither "a few inches in length'' nor "out of [respondents'] sight.''... The argument against possession by any of the respondents was predicated solely on the fact that the guns were in Jane Doe's pocketbook. But several circumstances--which, not surprisingly, her counsel repeatedly emphasized in his questions and his argument--made it highly improbable that she was the sole custodian of those weapons.

Even if it was reasonable to conclude that she had placed the guns in her purse before the car was stopped by police, the facts strongly suggest that Jane Doe was not the only person able to exercise dominion over them. The two guns were too large to be concealed in her handbag. The bag was consequently open, and part of one of the guns was in plain view, within easy access of the driver of the car and even, perhaps, of the other two respondents who were riding in the rear seat.

Moreover, it is highly improbable that the loaded guns belonged to Jane Doe or that she was solely responsible for their being in her purse. As a 16-year-old girl in the company of three adult men she was the least likely of the four to be carrying one, let alone two, heavy handguns. It is far more probable that she relied on the pocketknife found in her brassiere for any necessary self-protection. Under these circumstances, it was not unreasonable for her counsel to argue and for the jury to infer that when the car was halted for speeding, the other passengers in the car anticipated the risk of a search and attempted to conceal their weapons in a pocketbook in the front seat. The inference is surely more likely than the notion that these weapons were the sole property of the 16-year-old girl.

Under these circumstances, the jury would have been entirely reasonable in rejecting the suggestion--which, incidentally, defense counsel did not even advance in their closing arguments to the jury--that the handguns were in the sole possession of Jane Doe. Assuming that the jury did reject it, the case is tantamount to one in which the guns were lying on the floor or the seat of the car in the plain view of the three other occupants of the automobile. In such a case, it is surely rational to infer that each of the respondents was fully aware of the presence of the guns and had both the ability and the intent to exercise dominion and control over the weapons. The application of the statutory presumption in this case therefore comports with the standard laid down in Tot v. United States, 319 U.S., at 467, and restated in Leary v. United States, 395 U.S., at 36. For there is a "rational connection'' between the basic facts that the prosecution proved and the ultimate fact presumed, and the latter is "more likely than not to flow from'' the former.

Respondents argue, however, that the validity of the New York presumption must be judged by a "reasonable doubt'' test rather than the "more likely than not'' standard employed in Leary. Under the more stringent test, it is argued that a statutory presumption must be rejected unless the evidence necessary to invoke the inference is sufficient for a rational jury to find the inferred fact beyond a reasonable doubt. See Barnes v. United States, 412 U.S., at 842-843. Respondents' argument again overlooks the distinction between a permissive presumption on which the prosecution is entitled to rely as one not necessarily sufficient part of its proof and a mandatory presumption which the jury must accept even if it is the sole evidence of an element of the offense.

In the latter situation, since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt. But in the former situation, the prosecution may rely on all of the evidence in the record to meet the reasonable-doubt standard. There is no more reason to require a permissive statutory presumption to meet a reasonable-doubt standard before it may be permitted to play any part in a trial than there is to require that degree of probative force for other relevant evidence before it may be admitted. As long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt, it need only satisfy the test described in Leary.

The permissive presumption, as used in this case, satisfied the Leary test. And, as already noted, the New York Court of Appeals has concluded that the record as a whole was sufficient to establish guilt beyond a reasonable doubt.

The judgement is reversed.

Mr. Justice POWELL, with whom Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice MARSHALL join, dissenting.

I agree with the Court that there is no procedural bar to our considering the underlying constitutional question presented by this case. I am not in agreement, however, with the Court's conclusion that the presumption as charged to the jury in this case meets the constitutional requirements of due process as set forth in our prior decisions. On the contrary, an individual's mere presence in an automobile where there is a handgun does not even make it "more likely than not'' that the individual possesses the weapon.

I

In the criminal law, presumptions are used to encourage the jury to find certain facts, with respect to which no direct evidence is presented, solely because other facts have been proved.(3)1 See, e.g., Barnes v. United States, 412 U.S. 837, 840 n.3; United States v. Romano, 382 U.S. 136, 138 (1965). The purpose of such presumptions is plain: Like certain other jury instructions, they provide guidance for jurors' thinking in considering the evidence laid before them. Once in the juryroom, jurors necessarily draw inferences from the evidence--both direct and circumstantial. Through the use of presumptions, certain inferences are commended to the attention of jurors by legislatures or courts.

Legitimate guidance of a jury's deliberations is an indispensable part of our criminal justice system. Nonetheless, the use of presumptions in criminal cases poses at least two distinct perils for defendants' constitutional rights. The Court accurately identifies the first of these as being the danger of interference with "the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.'' If the jury is instructed that it must infer some ultimate fact (that is, some element of the offense) from proof of other facts unless the defendant disproves the ultimate fact by a preponderance of the evidence, then the presumption shifts the burden of proof to the defendant concerning the element thus inferred.(4)2

But I do not agree with the Court's conclusion that the only constitutional difficulty with presumptions lies in the danger of lessening the burden of proof the prosecution must bear. As the Court notes, the presumptions thus far reviewed by the Court have not shifted the burden of persuasion; instead they either have required only that the defendant produce some evidence to rebut the inference suggested by the prosecution's evidence, see Tot v. United States, 319 U.S. 463 (1943), or merely have been suggestions to the jury that it would be sensible to draw certain conclusions on the basis of the evidence presented. See Barnes v. United States, supra, 412 U.S. at 840 n.3. Evolving from our decisions, therefore, is a second standard for judging the constitutionality of criminal presumptions which is based--not on the constitutional requirement that the State be put to its proof--but rather on the due process rule that when the jury is encouraged to make factual inferences, those inferences must reflect some valid general observation about the natural connection between events as they occur in our society.

This due process rule was first articulated by the Court in Tot v. United States, supra, in which the Court reviewed the constitutionality of 2(f) of the Federal Firearms Act. That statute provided in part that "possession of a firearm or ammunition by any ... person [who has been convicted of a crime of violence] shall be presumptive evidence that such firearm or ammunition was shipped or transported [in interstate or foreign commerce].'' As the Court interpreted the presumption, it placed upon a defendant only the obligation of presenting some exculpatory evidence concerning the origins of a firearm or ammunition, once the Government proved that the defendant had possessed the weapon and had been convicted of a crime of violence. Noting that juries must be permitted to infer from one fact the existence of another essential to guilt, "if reason and experience support the inference,'' id., at 467, the Court concluded that under some circumstances juries may be guided in making these inferences by legislative or common-law presumptions, even though they may be based "upon a view of relation broader than that a jury might take in a specific case,'' 319 U.S., at 468. To provide due process, however, there must be at least "a rational connection between the facts proved and the fact presumed''--a connection grounded in "common experience.'' Id., at 467. In Tot, the Court found that connection to be lacking.

Subsequently, in Leary v. United States, 395 U.S. 6 (1969), the Court reaffirmed and refined the due process requirement of Tot that inferences specifically commended to the attention of jurors must reflect generally accepted connections between related events. At issue in Leary was the constitutionality of a federal statute making it a crime to receive, conceal, buy, or sell marihuana illegally brought into the United States, knowing it to have been illegally imported. The statute provided that mere possession of marihuana "shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.'' After reviewing the Court's decisions in Tot v. United States, supra, and other criminal presumption cases, Mr. Justice Harlan, writing for the Court, concluded "that a criminal statutory presumption must be regarded as 'irrational' or 'arbitrary,' and hence unconstitutional, unless it can 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.'' 395 U.S., at 36 (footnote omitted). The Court invalidated the statute, finding there to be insufficient basis in fact for the conclusion that those who possess marihuana are more likely than not to know that it was imported illegally.(5)5

Most recently, in Barnes v. United States, supra, we considered the constitutionality of a quite different sort of presumption--one that suggested to the jury that "[p]ossession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference ... that the person in possession knew the property had been stolen.'' Id., 412 U.S. at 840 n.3. After reviewing the various formulations used by the Court to articulate the constitutionally required basis for a criminal presumption, we once again found it unnecessary to choose among them. As for the presumption suggested to the jury in Barnes, we found that it was well founded in history, common sense, and experience, and therefore upheld it as being "clearly sufficient to enable the jury to find beyond a reasonable doubt'' that those in the unexplained possession of recently stolen property know it to have been stolen. Id., at 845.

In sum, our decisions uniformly have recognized that due process requires more than merely that the prosecution be put to its proof.(6)6 In addition, the Constitution restricts the court in its charge to the jury by requiring that, when particular factual inferences are recommended to the jury, those factual inferences be accurate reflections of what history, common sense, and experience tell us about the relations between events in our society. Generally this due process rule has been articulated as requiring that the truth of the inferred fact be more likely than not whenever the premise for the inference is true. Thus, to be constitutional a presumption must be at least more likely than not true.

II

In the present case, the jury was told that,

Our Penal Law also provides that the presence in an automobile of any machine gun or of any handgun or firearm which is loaded is presumptive evidence of their unlawful possession. In other words, [under] these presumptions or this latter presumption upon proof of the presence of the machine gun and the hand weapons, you may infer and draw a conclusion that such prohibited weapon was possessed by each of the defendants who occupied the automobile at the time when such instruments were found. The presumption or presumptions is effective only so long as there is no substantial evidence contradicting the conclusion flowing from the presumption, and the presumption is said to disappear when such contradictory evidence is adduced.

Undeniably, the presumption charged in this case encouraged the jury to draw a particular factual inference regardless of any other evidence presented: to infer that respondents possessed the weapons found in the automobile "upon proof of the presence of the machine gun and the hand weapon'' and proof that respondents "occupied the automobile at the time such instruments were found.'' I believe that the presumption thus charged was unconstitutional because it did not fairly reflect what common sense and experience tell us about passengers in automobiles and the possession of handguns. People present in automobiles where there are weapons simply are not "more likely than not'' the possessors of those weapons.

Under New York law, "to possess'' is "to have physical possession or otherwise to exercise dominion or control over tangible property.'' N.Y. Penal Law 10.00(8). Plainly the mere presence of an individual in an automobile--without more--does not indicate that he exercises "dominion or control over'' everything within it. As the Court of Appeals noted, there are countless situations in which individuals are invited as guests into vehicles the contents of which they know nothing about, much less have control over. Similarly, those who invite others into their automobile do not generally search them to determine what they may have on their person; nor do they insist that any handguns be identified and placed within reach of the occupants of the automobile. Indeed, handguns are particularly susceptible to concealment and therefore are less likely than are other objects to be observed by those in an automobile.

In another context, this Court has been particularly hesitant to infer possession from mere presence in a location, noting that "[p]resence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant's function at [the illegal] still, its connection with possession is too tenuous to permit a reasonable inference of guilt--'the inference of the one from proof of the other is arbitrary....' Tot v. United States, 319 U.S. 463, 467.'' United States v. Romano, 382 U.S. 136, 141 (1965). We should be even more hesitant to uphold the inference of possession of a handgun from mere presence in an automobile, in light of common experience concerning automobiles and handguns. Because the specific factual inference recommended to the jury in this case is not one that is supported by the general experience of our society, I cannot say that the presumption charged is "more likely than not'' to be true. Accordingly, respondents' due process rights were violated by the presumption's use.

As I understand it, the Court today does not contend that in general those who are present in automobiles are more likely than not to possess any gun contained within their vehicles. It argues, however, that the nature of the presumption here involved requires that we look, not only to the immediate facts upon which the jury was encouraged to base its inference, but to the other facts "proved'' by the prosecution as well. The Court suggests that this is the proper approach when reviewing what it calls "permissive'' presumptions because the jury was urged "to consider all the circumstances tending to support or contradict the inference.''

It seems to me that the Court mischaracterizes the function of the presumption charged in this case. As it acknowledges was the case in Romano, supra, the "instruction authorized conviction even if the jury disbelieved all of the testimony except the proof of presence'' in the automobile.(7)7 The Court nevertheless relies on all of the evidence introduced by the prosecution and argues that the "permissive'' presumption could not have prejudiced defendants. The possibility that the jury disbelieved all of this evidence, and relied on the presumption, is simply ignored.

I agree that the circumstances relied upon by the Court in determining the plausibility of the presumption charged in this case would have made it reasonable for the jury to "infer that each of the respondents was fully aware of the presence of the guns and had both the ability and the intent to exercise dominion and control over the weapons.'' But the jury was told that it could conclude that respondents possessed the weapons found therein from proof of the mere fact of respondents' presence in the automobile. For all we know, the jury rejected all of the prosecution's evidence concerning the location and origin of the guns, and based its conclusion that respondents possessed the weapons solely upon its belief that respondents had been present in the automobile.(8)8 For purposes of reviewing the constitutionality of the presumption at issue here, we must assume that this was the case.

The Court's novel approach in this case appears to contradict prior decisions of this Court reviewing such presumptions. Under the Court's analysis, whenever it is determined that an inference is "permissive,'' the only question is whether, in light of all of the evidence adduced at trial, the inference recommended to the jury is a reasonable one. The Court has never suggested that the inquiry into the rational basis of a permissible inference may be circumvented in this manner. Quite the contrary, the Court has required that the "evidence necessary to invoke the inference [be] sufficient for a rational juror to find the inferred fact....'' Barnes v. United States, 412 U.S. 843 (1973) (emphasis supplied). See Turner v. United States, 396 U.S. 398, 407 (1970). Under the presumption charged in this case, the only evidence necessary to invoke the inference was the presence of the weapons in the automobile with respondents--an inference that is plainly irrational.

In sum, it seems to me that the Court today ignores the teaching of our prior decisions. By speculating about what the jury may have done with the factual inference thrust upon it, the Court in effect assumes away the inference altogether, constructing a rule that permits the use of any inference--no matter how irrational in itself--provided that otherwise there is sufficient evidence in the record to support a finding of guilt. Applying this novel analysis to the present case, the Court upholds the use of a presumption that it makes no effort to defend in isolation. In substance, the Court--applying an unarticulated harmless error standard--simply finds that the respondents were guilty as charged. They may well have been but rather than acknowledging this rationale, the Court seems to have made new law with respect to presumptions that could seriously jeopardize a defendant's right to a fair trial. Accordingly, I dissent.



Do you agree with the majority's characterization of the device involved in Ulster City as a "permissive inference''? If the factfinder's responsibility is to find the ultimate facts beyond a reasonable doubt based on evidence presented by the prosecution, how can the court apply any standard other than the "beyond-a-reasonable-doubt-rational-connection test'' to this device, regardless of how it is characterized? Has the majority applied a standard even lower than the preponderance standard, i.e., "not-irrational''? Is the majority correct in considering all the evidence in the case in deciding whether the presumption passes constitutional muster? Is the dissent correct in insisting that the presumption be judged solely on the basis of the relationship between the basic fact and the presumed fact? Did the device in this case operate to shift the burden of production to the defendant? Is this constitutional? Is the decision in this case consistent with proposed Rule 303?

MEDINA v. CALIFORNIA

112 S. Ct. 2572 (1992)

Justice KENNEDY delivered the opinion of the Court.

It is well established that the Due Process Clause of the Fourteenth Amendment prohibits the criminal prosecution of a defendant who is not competent to stand trial. Drope v. Missouri, 420 U.S. 162 (1975); Pate v. Robinson, 383 U.S. 375 (1966). The issue in this case is whether the Due Process Clause permits a State to require a defendant who alleges incompetence to stand trial to bear the burden of proving so by a preponderance of the evidence.

I

In 1984, petitioner Teofilo Medina, Jr. stole a gun from a pawn shop in Santa Ana, California. In the weeks that followed, he held up two gas stations, a drive-in dairy, and a market, murdered three employees of those establishments, attempted to rob a fourth employee, and shot at two passersby who attempted to follow his getaway car. Petitioner was apprehended less than one month after his crime spree began and was charged with a number of criminal offenses, including three counts of first-degree murder. Before trial, petitioner's counsel moved for a competency hearing under Cal. Pen. Code Ann. 1368 (West 1982), on the ground that he was unsure whether petitioner had the ability to participate in the criminal proceedings against him.

Under California law, "[a] person cannot be tried or adjudged to punishment while such person is mentally incompetent.'' Cal. Pen. Code Ann. 1367 (West 1982). A defendant is mentally incompetent "if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.'' Ibid. The statute establishes a presumption that the defendant is competent, and the party claiming incompetence bears the burden of proving that the defendant is incompetent by a preponderance of the evidence. 1369(f) ("It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent'').

The trial court granted the motion for a hearing and the preliminary issue of petitioner's competence to stand trial was tried to a jury. Over the course of the six-day hearing, in addition to lay testimony, the jury heard conflicting expert testimony about petitioner's mental condition. The Supreme Court of California gives this summary: "Dr. Gold, a psychiatrist who knew defendant while he was in the Arizona prison system, testified that defendant was a paranoid schizophrenic and was incompetent to assist his attorney at trial. Dr. Echeandia, a clinical psychologist at the Orange County jail, doubted the accuracy of the schizophrenia diagnosis, and could not express an opinion on defendant's competence to stand trial. Dr. Sharma, a psychiatrist, likewise expressed doubts regarding the schizophrenia diagnosis and leaned toward a finding of competence. Dr. Pierce, a psychologist, believed defendant was schizophrenic, with impaired memory and hallucinations, but nevertheless was competent to stand trial. Dr. Sakurai, a jail psychiatrist, opined that although defendant suffered from depression, he was competent, and that he may have been malingering. Dr. Sheffield, who treated defendant for knife wounds he incurred in jail, could give no opinion on the competency issue.'' 51 Cal. 3d 870, 880 (1990). During the competency hearing, petitioner engaged in several verbal and physical outbursts. On one of these occasions, he overturned the counsel table.

The trial court instructed the jury in accordance with 1369(f) that "the defendant is presumed to be mentally competent and he has the burden of proving by a preponderance of the evidence that he is mentally incompetent as a result of mental disorder or developmental disability.'' The jury found petitioner competent to stand trial. A new jury was impanelled for the criminal trial, and petitioner entered pleas of not guilty and not guilty by reason of insanity. At the conclusion of the guilt phase, petitioner was found guilty of all three counts of first-degree murder and a number of lesser offenses. He moved to withdraw his insanity plea, and the trial court granted the motion. Two days later, however, petitioner moved to reinstate his insanity plea. Although his counsel expressed the view that reinstatement of the insanity plea was "tactically unsound,'' the trial court granted petitioner's motion. A sanity hearing was held, and the jury found that petitioner was sane at the time of the offenses. At the penalty phase, the jury found that the murders were premeditated and deliberate, and returned a verdict of death. The trial court imposed the death penalty for the murder convictions, and sentenced petitioner to a prison term for the remaining offenses.

On direct appeal to the California Supreme Court, petitioner did not challenge the standard of proof set forth in 1369(f), but argued that the statute violated his right to due process by placing the burden of proof on him to establish that he was not competent to stand trial. In addition, he argued that 1369(f) violates due process by establishing a presumption that a defendant is competent to stand trial unless proven otherwise. The court rejected both of these contentions. Relying upon our decision in Leland v. Oregon, 343 U.S. 790 (1952), which rejected a due process challenge to an Oregon statute that required a criminal defendant to prove the defense of insanity beyond a reasonable doubt, the court observed that "the states ordinarily have great latitude to decide the proper placement of proof burdens.'' 51 Cal. 3d, at 884. In its view, 1369(f) "does not subject the defendant to hardship or oppression,'' because "one might reasonably expect that the defendant and his counsel would have better access than the People to the facts relevant to the court's competency inquiry.'' Id., at 885. The court also rejected petitioner's argument that it is "irrational'' to retain a presumption of competence after sufficient doubt has arisen as to a defendant's competence to warrant a hearing, and "decline[d] to hold as a matter of due process that such a presumption must be treated as a mere presumption affecting the burden of production, which disappears merely because a preliminary, often undefined and indefinite, 'doubt' has arisen that justifies further inquiry into the matter.'' Id., at 885. We granted certiorari and now affirm.

II

Petitioner argues that our decision in Mathews v. Eldridge, 424 U.S. 319 (1976), provides the proper analytical framework for determining whether California's allocation of the burden of proof in competency hearings comports with due process. We disagree. In Mathews, we articulated a three-factor test for evaluating procedural due process claims which requires a court to consider "[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.'' Id., at 335. In our view, the Mathews balancing test does not provide the appropriate framework for assessing the validity of state procedural rules which, like the one at bar, are part of the criminal process....

The proper analytical approach, and the one that we adopt here, is that set forth in Patterson v. New York, 432 U.S. 197 (1977), which was decided one year after Mathews. In Patterson, we rejected a due process challenge to a New York law which placed on a criminal defendant the burden of proving the affirmative defense of extreme emotional disturbance. Rather than relying upon the Mathews balancing test, however, we reasoned that a narrower inquiry was more appropriate: "It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government, Irvine v. California, 347 U.S. 128 (1954) (plurality opinion), and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally 'within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,' and its decision in this regard is not subject to proscription under the Due Process Clause unless 'it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' ''...

Based on our review of the historical treatment of the burden of proof in competency proceedings, the operation of the challenged rule, and our precedents, we cannot say that the allocation of the burden of proof to a criminal defendant to prove incompetence "offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'' Patterson v. New York, supra, 432 U.S., at 202....

Under California law, the allocation of the burden of proof to the defendant will affect competency determinations only in a narrow class of cases where the evidence is in equipoise; that is, where the evidence that a defendant is competent is just as strong as the evidence that he is incompetent. Our cases recognize that a defendant has a constitutional right "not to be tried while legally incompetent,'' and that a State's "failure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.'' Drope v. Missouri, 420 U.S., at 172. Once a State provides a defendant access to procedures for making a competency evaluation, however, we perceive no basis for holding that due process further requires the State to assume the burden of vindicating the defendant's constitutional right by persuading the trier of fact that the defendant is competent to stand trial.

Petitioner relies upon federal and state-court decisions which have said that the allocation of the burden of proof to the defendant in these circumstances is inconsistent with the rule of Pate v. Robinson, supra, 383 U.S., at 384, where we held that a defendant whose competence is in doubt cannot be deemed to have waived his right to a competency hearing. Because "'it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently "waive'' his right to have the court determine his capacity to stand trial,' '' it has been said that it is also "contradictory to argue that a defendant who may be incompetent should be presumed to possess sufficient intelligence that he will be able to adduce evidence of his incompetency which might otherwise be within his grasp.'' United States v. DiGilio, [538 F.2d 972, 988 (CA3 1976), cert. denied, 429 U.S. 1038 (1977), quoting Pate v. Robinson, supra, 383 U.S. at 384].

In our view, the question whether a defendant whose competence is in doubt may waive his right to a competency hearing is quite different from the question whether the burden of proof may be placed on the defendant once a hearing is held. The rule announced in Pate was driven by our concern that it is impossible to say whether a defendant whose competence is in doubt has made a knowing and intelligent waiver of his right to a competency hearing. Once a competency hearing is held, however, the defendant is entitled to the assistance of counsel, and psychiatric evidence is brought to bear on the question of the defendant's mental condition. Although an impaired defendant might be limited in his ability to assist counsel in demonstrating incompetence, the defendant's inability to assist counsel can, in and of itself, constitute probative evidence of incompetence, and defense counsel will often have the best-informed view of the defendant's ability to participate in his defense. While reasonable minds may differ as to the wisdom of placing the burden of proof on the defendant in these circumstances, we believe that a State may take such factors into account in making judgments as to the allocation of the burden of proof, and we see no basis for concluding that placing the burden on the defendant violates the principle approved in Pate.

Petitioner argues that psychiatry is an inexact science, and that placing the burden of proof on the defendant violates due process because it requires the defendant to "bear the risk of being forced to stand trial as a result of an erroneous finding of competency.''... Consistent with our precedents, it is enough that the State affords the criminal defendant on whose behalf a plea of incompetence is asserted a reasonable opportunity to demonstrate that he is not competent to stand trial.

Petitioner further contends that the burden of proof should be placed on the State because we have allocated the burden to the State on a variety of other issues that implicate a criminal defendant's constitutional rights. The decisions upon which petitioner relies, however, do not control the result here, because they involved situations where the government sought to introduce inculpatory evidence obtained by virtue of a waiver of, or in violation of, a defendant's constitutional rights. In such circumstances, allocating the burden of proof to the government furthers the objective of "deterring lawless conduct by police and prosecution.'' No such purpose is served by allocating the burden of proof to the government in a competency hearing.

In light of our determination that the allocation of the burden of proof to the defendant does not offend due process, it is not difficult to dispose of petitioner's challenge to the presumption of competence imposed by 1369(f). Under California law, a defendant is required to make a threshold showing of incompetence before a hearing is required and, at the hearing, the defendant may be prevented from making decisions that are normally left to the discretion of a competent defendant. Petitioner argues that, once the trial court has expressed a doubt as to the defendant's competence, a hearing is held, and the defendant is deprived of his right to make determinations reserved to competent persons, it is irrational to retain the presumption that the defendant is competent.

In rejecting this contention below, the California Supreme Court observed that "[t]he primary significance of the presumption of competence is to place on defendant (or the People, if they contest his competence) the burden of rebutting it'' and that, "[b]y its terms, the presumption of competence is one which affects the burden of proof.'' 51 Cal. 3d, at 885. We see no reason to disturb the California Supreme Court's conclusion that, in essence, the challenged presumption is a restatement of the burden of proof, and it follows from what we have said that the presumption does not violate the Due Process Clause....

The judgment of the Supreme Court of California is affirmed.

Justice O'CONNOR, with whom Justice SOUTER joins, concurring in the judgment.

I concur in the judgment of the Court, but I reject its intimation that the balancing of equities is inappropriate in evaluating whether state criminal procedures amount to due process.... The balancing of equities that Mathews v. Eldridge outlines remains a useful guide in due process cases....

In determining whether the placement of the burden of proof is fundamentally unfair, relevant considerations include: whether the Government has superior access to evidence; whether the defendant is capable of aiding in the garnering and evaluation of evidence on the matter to be proved; and whether placing the burden of proof on the Government is necessary to help enforce a further right, such as the right to be presumed innocent, the right to be free from self-incrimination, or the right to be tried while competent.

After balancing the equities in this case, I agree with the Court that the burden of proof may constitutionally rest on the defendant. As the dissent points out, the competency determination is based largely on the testimony of psychiatrists. The main concern of the prosecution, of course, is that a defendant will feign incompetence in order to avoid trial. If the burden of proving competence rests on the Government, a defendant will have less incentive to cooperate in psychiatric investigations, because an inconclusive examination will benefit the defense, not the prosecution. A defendant may also be less cooperative in making available friends or family who might have information about the defendant's mental state. States may therefore decide that a more complete picture of a defendant's competence will be obtained if the defense has the incentive to produce all the evidence in its possession. The potentially greater overall access to information provided by placing the burden of proof on the defense may outweigh the danger that, in close cases, a marginally incompetent defendant is brought to trial. Unlike the requirement of a hearing or a psychiatric examination, placing the burden of proof on the Government will not necessarily increase the reliability of the proceedings. The equities here, then, do not weigh so much in petitioner's favor as to rebut the presumption of constitutionality that the historical toleration of procedural variation creates.

As the Court points out, the other cases in which we have placed the burden of proof on the government are distinguishable. See Colorado v. Connelly, 479 U.S. 157 (1986) (burden of proof on Government to show waiver of rights under Miranda v. Arizona, 384 U.S. 436 (1966)); Nix v. Williams, 467 U.S. 431, 444-445, n.5 (1984) (burden on Government to show inevitable discovery of evidence obtained by unlawful means); United States v. Matlock, 415 U.S. 164, 177-178, n.14 (1974) (burden on Government to show voluntariness of consent to search); Lego v. Twomey, 404 U.S. 477, 489 (1972) (burden on Government to show voluntariness of confession). In each of these cases, the Government's burden of proof accords with its investigatory responsibilities. Before obtaining a confession, the Government is required to ensure that the confession is given voluntarily. Before searching a private area without a warrant, the Government is generally required to ensure that the owner consents to the search. The Government has no parallel responsibility to gather evidence of a defendant's competence.

Justice BLACKMUN, with whom Justice STEVENS joins, dissenting.

Teofilo Medina, Jr., may have been mentally incompetent when the State of California convicted him and sentenced him to death. One psychiatrist testified he was incompetent. Another psychiatrist and a psychologist testified he was not. Several other experts testified but did not express an opinion on competence. Instructed to presume that petitioner Medina was competent, the jury returned a finding of competence. For all we know, the jury was entirely undecided. I do not believe a Constitution that forbids the trial and conviction of an incompetent person tolerates the trial and conviction of a person about whom the evidence of competency is so equivocal and unclear. I dissent....

As an initial matter, I believe the Court's approach to this case effectively asks and answers the wrong doctrinal question. Following the lead of the parties, the Court mistakenly frames its inquiry in terms of whether to apply a standard it takes to be derived from language in Patterson v. New York, 432 U.S. 197 (1977), or a standard based on the functional balancing approach of Mathews v. Eldridge, 424 U.S. 319 (1976). The Court is not put to such a choice. Under Drope and Pate, it need decide only whether a procedure imposing the burden of proof upon the defendant is "adequate'' to protect the constitutional prohibition against trial of incompetent persons.

The Court, however, chooses the Patterson path, announcing that there is no violation of due process unless placing the burden of proof of incompetency upon the defendant "'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' '' Separating the primary right (the right not to be tried while incompetent) from the subsidiary right (the right not to bear the burden of proof of incompetency), the Court acknowledges the primary right to be fundamental in "our common-law heritage,'' but determines the subsidiary right to be without a "settled tradition'' deserving of constitutional protection. This approach is mistaken, because it severs two integrally related procedural rights that cannot be examined meaningfully in isolation. The protections of the Due Process Clause, to borrow the second Justice Harlan's words, are simply not "a series of isolated points pricked'' out in terms of their most specific level of historic generality. Poe v. Ullman, 367 U.S. 497 (1961) (dissenting opinion). Had the Court taken the same historical-categorical approach in Pate and Drope, it would not have recognized that a defendant has a right to a competency hearing, for in neither of those cases was there any showing that the mere denial of a hearing where there is doubt about competency offended any deeply rooted traditions of the American people.

In all events, I do not interpret the Court's reliance on Patterson to undermine the basic balancing of the government's interests against the individual's interest that is germane to any due process inquiry. While unwilling to discount the force of tradition and history, the Court in Patterson did not adopt an exclusively tradition-based approach to due process analysis. Relying on Morrison v. California, 291 U.S. 82 (1934), the Court in Patterson looked to the "convenience'' to the government and "hardship or oppression'' to the defendant in forming its allocation of the burden of proof. 432 U.S., at 203, n.9, and 210. "'The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant. The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression. Cf. Wigmore, Evidence, Vol. 5, 2486, 2512, and cases cited.' '' Id., at 203, n.9, quoting Morrison v. California, 291 U.S., at 88-89....

The Court suggests that "defense counsel will often have the best-informed view of the defendant's ability to participate in his defense.'' There are at least three good reasons, however, to doubt the Court's confidence. First, while the defendant is in custody, the State itself obviously has the most direct, unfettered access to him and is in the best position to observe his behavior. In the present case, Medina was held before trial in the Orange County jail system for more than a year and a half prior to his competency hearing. During the months immediately preceding the competency hearing, he was placed several times for extended periods in a padded cell for treatment and observation by prison psychiatric personnel. While Medina was in the padded cell, prison personnel observed his behavior every 15 minutes.

Second, a competency determination is primarily a medical and psychiatric determination. Competency determinations by and large turn on the testimony of psychiatric experts, not lawyers.... While the testimony of psychiatric experts may be far from infallible, it is the experts and not the lawyers who are credited as the "best-informed,'' and most able to gauge a defendant's ability to understand and participate in the legal proceedings affecting him.

Third, even assuming that defense counsel has the "best-informed view'' of the defendant's competency, the lawyer's view will likely have no outlet in, or effect on, the competency determination. Unlike the testimony of medical specialists or lay witnesses, the testimony of defense counsel is far more likely to be discounted by the factfinder as self-interested and biased. Defense counsel may also be discouraged in the first place from testifying for fear of abrogating an ethical responsibility or the attorney-client privilege. By way of example from the case at hand, it should come as little surprise that neither of Medina's two attorneys was among the dozens of persons testifying during the six days of competency proceedings in this case.

Like many psychological inquiries, competency evaluations are "in the present state of the mental sciences ... at best a hazardous guess however conscientious.'' Solesbee v. Balkcom, 339 U.S., at 23 (Frankfurter, J., dissenting). This unavoidable uncertainty expands the range of cases where the factfinder will conclude the evidence is in equipoise. The Court, however, dismisses this concern on grounds that "'[d]ue process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.' '' Yet surely the Due Process Clause requires some conceivable steps be taken to eliminate the risk of erroneous convictions. I search in vain for any guiding principle in the Court's analysis that determines when the risk of a wrongful conviction happens to be acceptable and when it does not.

The allocation of the burden of proof reflects a societal judgment about how the risk of error should be distributed between litigants.... "The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.'' Addington v. Texas, [441 U.S. 418, 427 (1979)]. The costs to the State of bearing the burden of proof of competency are not at all prohibitive. The Court acknowledges that several States already bear the burden, and that the allocation of the burden of proof will make a difference "only in a narrow class of cases where the evidence is in equipoise.'' In those few difficult cases, the State should bear the burden of remitting the defendant for further psychological observation to ensure that he is competent to defend himself....

1. 1. In Mims v. United States, 375 F.2d 135, 143-44 (5th Cir. 1967), the court stated that expert testimony may be rebutted "by showing the incorrectness or inadequacy of the factual assumptions upon which the opinion is based, `the reasoning by which he progresses from his material to his conclusion,' the interest or bias of the expert, inconsistencies or contradiction in his testimony as to material matters, material variations between the experts themselves, and defendant's lack of co-operation with the expert. Also in cases involving opinions of medical experts, the probative force of that character of testimony is lessened where it is predicated on subjective symptoms, or where it is based on narrative statements to the expert as to past events not in evidence at the trial. In some cases, the cross-examination of the expert may be such as to justify the trier of facts in not being convinced by him. One or more of these factors may, depending on the particular facts of each case, make a jury issue as to the credibility and weight to be given to the expert testimony ...'' (footnotes omitted). See also United States v. McGraw, 515 F.2d 758 (9th Cir. 1975), holding that defendant's expert testimony may be rebutted by cross-examination or evidence from which the jury could infer that the defendant's expert testimony depended upon an incorrect view of the facts.

2. Our approach is not easily reconciled with that taken in Beltran v. United States, 302 F.2d 48 (1st Cir. 1962), in which Judge Aldrich wrote, 302 F.2d at 52,

"The introduction of evidence of insanity places a burden on the government of proving sanity beyond a reasonable doubt.... This burden cannot be spirited away by the simple method proposed by the government of the court's saying it does not believe the evidence, therefore there is no evidence, therefore there is no burden.... [S]uch thinking would render the whole principle meaningless. Rather, the record must be looked at as a whole, with the burden on the government to overcome any reasonable doubt.'' ...

3. 1. Such encouragement can be provided either by statutory presumptions, see, e.g., 18 U.S.C. 1201(b), or by presumptions created in the common law. See, e.g., Barnes v. United States, 412 U.S. 837 (1973). Unless otherwise specified, "presumption'' will be used herein to refer to "permissible inferences,'' as well as to "true'' presumptions. See F. James, Civil Procedure 7.9 (1965).

4. 2. The Court suggests that presumptions that shift the burden of persuasion to the defendant in this way can be upheld provided that "the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.'' As the present case involves no shifting of the burden of persuasion, the constitutional restrictions on such presumptions are not before us, and I express no views on them.

It may well be that even those presumptions that do not shift the burden of persuasion cannot be used to prove an element of the offense, if the facts proved would not permit a reasonable mind to find the presumed fact beyond a reasonable doubt. My conclusion in Part II, infra, makes it unnecessary for me to address this concern here.

5. 5. Because the statute in Leary v. United States, 395 U.S. 6 (1969), was found to be unconstitutional under the "more likely than not'' standard, the Court explicitly declined to consider whether criminal presumptions also must follow "beyond a reasonable doubt'' from their premises, if an essential element of the crime depends upon the presumption's use. Id., at 36 n.64. See supra n.2. The Court similarly avoided this question in Turner v. United States, 396 U.S. 398 (1970).

6. 6. The Court apparently disagrees, contending that "the factfinder's responsibility ... to find the ultimate facts beyond a reasonable doubt'' is the only constitutional restraint upon the use of criminal presumptions at trial.

7. 7. In commending the presumption to the jury, the court gave no instruction that would have required a finding of possession to be based on anything more than mere presence in the automobile. Thus, the jury was not instructed that it should infer that respondents possessed the handguns only if it found that the guns were too large to be concealed in Jane Doe's handbag; that the guns accordingly were in the plain view of respondents; that the weapons were within "easy access of the driver of the car and even, perhaps, of the other two respondents who were riding in the rear seat''; that it was unlikely that Jane Doe was solely responsible for the placement of the weapons in her purse; or that the case was "tantamount to one in which the guns were lying on the floor or the seat of the car in the plain view of the three other occupants of the automobile.''

8. 8. The Court is therefore mistaken in its conclusion that, because "respondents were not 'hitch-hikers or other casual passengers,' and the guns were neither 'a few inches in length' nor 'out of [respondents'] sight,' '' reference to these possibilities is inappropriate in considering the constitutionality of the presumption as charged in this case. To be sure, respondents' challenge is to the presumption as charged to the jury in this case. But in assessing its application here, we are not free, as the Court apparently believes, to disregard the possibility that the jury may have disbelieved all other evidence supporting an inference of possession. The jury may have concluded that respondents--like hitchhikers--had only an incidental relationship to the auto in which they were traveling, or that, contrary to some of the testimony at trial, the weapons were indeed out of respondents' sight.

 


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