Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

CHAPTER X: ALLOCATION, INFERENCE, BURDENS, AND PRESUMPTIONS
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F. Criminal Presumptions: Are There Problems with the Fifth Amendment and the Presumption of Innocence? (1089)

Problem - Moonshine (1089)

The point:

(1) Presumptions in criminal cases can easily run afoul of both the fifth amendment and the presumption of innocence.

(2) Most of the problems can be avoided by instructions which require the factfinder to come to a conclusion only in the context of all of the evidence.

Answer and Analysis:

(1) If all the factfinder knows is that D was found present at the site of an illegal whiskey still, then it would not be possible to conclude without guessing or speculating that D was operating the still. The reason is that there is a plausible hypothesis (D was innocently out walking in the woods) that is consistent with D's innocence and which cannot be eliminated either by making credibility judgments or by reasonable assessments of the force of the circumstantial evidence.

Given such a situation in a civil context, there would be no problem in creating a presumption which would force the defendant to come forward with an explanation. That would put the factfinder in a position to judge the credibility of the defendant's explanation, and thereby to resolve the case. If the defendant did not come forward, either a verdict could be directed against him or the factfinder could draw an inference from his unresponsiveness.

But in a criminal case it is not so easy to burden the defendant to speak up. If proof of the predicate for a presumption is not in itself sufficient to support a verdict (i.e., sufficient to withstand a motion for directed verdict at the close of the prosecution's case), then a presumption which allows the prosecution to take advantage of an inference from the defendant's unresponsiveness is inconsistent with the presumption of innocence. The content of that presumption is the defendant's right to remain in repose and presumed innocent until the prosecution displaces that presumption by proving the defendant guilty beyond a reasonable doubt.

(2) Most of the problems of criminal presumptions are artificially created by the instructions given to the factfinder. In the actual cases the evidence is never limited to the predicate. There is never, for example, a Moonshine type prosecution in which the only evidence is that the defendant was found present at the site of a still. At the least there is evidence about the time of day, the distance from the still, what the defendant was wearing, and many other details which make up a complex circumstantial picture. In United States v.. 380 U.S. 63 (1965), from which the Moonshine problem is drawn, the defendant was found at the site of a still at 4:00 a.m. driving a truck with the lights out and with spent butane containers of the kind that were being used to fire the still in the back of the truck. The abstract question about whether a factfinder could rationally infer operation of a still from proof of mere presence arose only because the judge instructed the jury that it could, by reason of the presumption, infer operation from presence. That instruction made it theoretically possible for the factfinder to ignore all evidence other than mere presence and convict on that alone: therefore, if a presumption from mere presence to operation was improper, the defendant was entitled to a reversal of his conviction.

Such problems would not arise if judge avoided instructions which abstract the predicate facts from the rest of the evidentiary context. This is the point of the second example instruction in the Moonshine problem.

Yee Hem v. United States, 268 U.S. 178 (1925)

and

Griffin v. California, 380 U.S.609 (1965)

These cases are discussed in the text at 1095-1098.

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