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

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G. Criminal Presumptions and Rationality (1098)

United States v. Dube, 520 F.2d 250 (1st Cir. 1975) (1098)

Dube shows the potential discontinuity created by the bursting bubble in the criminal context. The defendant rebutted the presumption of sanity with evidence that the jury found not credible. In order to avoid the anomalous conclusion that the defendant's incredible evidence entitled him to a directed verdict in his favor because the prosecution had not put on psychiatric proof of the defendant's sanity, the court had to resort to the questionable assertion that a factfinder could conclude beyond reasonable doubt that the defendant was sane from the way in which he committed the crime.

Judge Campbell, in the concurring opinion, is troubled by the court's logic. He tries to improve on it by arguing that the jury could use the presumption itself as evidence. This, as we have seen, is no improvement.

The most logical rationalization of what was obviously a correct outcome would be to characterize insanity as an affirmative defense which the defendant can prove by raising a credible doubt about his sanity. That approach would be constitutional, although perhaps inconsistent with the language of Davis v. United States, 160 U.S. 469 (1895), cited by Judge Campbell in the concurring opinion. In Leland v. Oregon, 343 U.S. 790

(1952), the Supreme Court ruled Oregon's approach constitutional in which insanity is an affirmative defense which the defendant must establish by proof beyond reasonable doubt!

Since Dube Congress has acted to make insanity an affirmative defense in Federal criminal prosecutions. See 18 U.S. C. 17.

Questions at page 1102:

The questions link back to the discussion of Burdine. The reciprocal of the plaintiff proving that an element is more probable than not would be the defendant proving that the element is "as likely as not." This differs from ignorance about the issue in situations in which the defendant has shown that there is a genuine dispute on the facts.

County Court of Ulster City v. Allen, 442 U.S. 140 (1979) (1102)

The majority analyzes this case as if the trial judge did not give an instruction that told the jury that it could convict the defendants for possession based solely on their presence in a car in which a loaded gun was found. The emphasis in the majority opinion is on the whole case, and the judge's instructions that the jury should 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. The problem is that the trial judge did give the potentially abstracting instruction (quoted in Powell's dissenting opinion). Given that instruction, the majority's opinion does not make much sense. Notwithstanding this analytical flaw, the case is a strong indication that judges should not allow the factfinder to consider the predicate to a presumption to be abstracted from its actual evidentiary context in the case.

Questions on Page 1113:

If the abstracted predicate fact is to be considered sufficient as a basis for presuming the ultimate fact, then the connection between the two should be so strong that proof of the predicate proves the ultimate fact beyond reasonable doubt. That is why no case should be allowed to rest alone on proof of the abstracted predicate fact. The majority did apply a lesser standard, but did so on the apparent (albeit contrary-to-fact) assumption that the factfinder had not been authorized by the trial judge's instructions to find the ultimate fact based solely on its finding of the predicate abstracted from the rest of the evidence.

The Ulster County decision is consistent with proposed FRE 303. FRE 303(c), dealing with instructions to the jury, might however be improved in light of the Ulster County opinion. Instead of providing that "the judge shall give an instruction that the law declares that the jury may regard the basic facts as sufficient evidence of the presumed fact . . . .", the proposed rule should provide that "the judge shall give an instruction that the jury may regard the basic facts, evaluated in the context of all of the evidence, as sufficient evidence of the presumed fact . . . ." This approach is then reinforced by the last sentence of proposed 303(c): "In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge shall instruct the jury that its existence must, on all the evidence, be proved beyond a reasonable doubt."

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