Rule 303

Presumptions in Criminal Cases

(Not enacted.)

(a) Scope. Except as otherwise provided by Act of Congress, in criminal cases, presumptions against an accused, recognized at common law or created by statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt, are governed by this rule.

(b) Submission to jury. The judge is not authorized to direct the jury to find a presumed fact against the accused. When the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge may submit the question of guilt or of the existence of the presumed fact to the jury, if, but only if, a reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find guilt or the presumed fact beyond a reasonable doubt. When the presumed fact has a lesser effect, its existence may be submitted to the jury if the basic facts are supported by substantial evidence, or are otherwise established, unless the evidence as a whole negatives the existence of the presumed fact.

(c) Instructing the jury. Whenever the existence of a presumed fact against the accused is submitted to the jury, 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 but does not require it to do so. 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.

Advisory Committee’s Note

Subdivision (a). This rule is based largely upon A.L.I. Model Penal Code 1.12(5) P.O.D. (1962) and United States v. Gainey, 380 U.S. 63, 85 S. Ct. 754, 13 L. Ed. 2d 658 (1965). While the rule, unlike the Model Penal Code provision, spells out the effect of common law presumptions as well as those created by statute, cases involving the latter are no doubt of more frequent occurrence. Congress has enacted numerous provisions to lessen the burden of the prosecution, principally though not exclusively in the fields of narcotics control and taxation of liquor. Occasionally, in the pattern of the usual common law treatment of such matters as insanity, they take the form of assigning to the defense the responsibility of raising specified matters as affirmative defenses, which are not within the scope of these rules. See Comment, A.L.I. Model Penal Code 1.13, T.D. No. 4 (1955). In other instances they assume a variety of forms which are the concern of this rule. The provision may be that proof of a specified fact (possession or presence) is sufficient to authorize conviction. 26 U.S.C. 4704(a), unlawful to buy or sell opium except from an original stamped package—absence of stamps from package prima facie evidence of violation by person in possession; 26 U.S.C. 4724(c), unlawful for person who has not registered and paid special tax to possess narcotics—possession presumptive evidence of violation. Sometimes the qualification is added, "unless the defendant explains the possession [presence] to the satisfaction of the jury." 18 U.S.C. 545, possession of unlawfully imported goods sufficient for conviction of smuggling, unless explained; 21 U.S.C. 174, possession sufficient for conviction of buying or selling narcotics known to have been imported unlawfully, unless explained. See also 26 U.S.C. 5601(a)(1), (a)(4), (a)(8), (b)(1), (b)(2), (b)(4), relating to distilling operations. Another somewhat different pattern makes possession evidence of a particular element of the crime. 21 U.S.C. 176b, crime to furnish unlawfully imported heroin to juveniles—possession sufficient proof of unlawful importation, unless explained; 50 U.S.C.A. App. 462(b), unlawful to possess draft card not lawfully issued to holder, with intent to use for purposes of false identification—possession sufficient evidence of intent, unless explained. See also 15 U.S.C. 902(f), (i).

Differences between the permissible operation of presumptions against the accused in criminal cases and in other situations prevent the formulation of a comprehensive definition of the term "presumption," and none is attempted. Nor do these rules purport to deal with problems of the validity of presumptions except insofar as they may be found reflected in the formulation of permissible procedures.

The presumption of innocence is outside the scope of the rule and unaffected by it.

Subdivisions (b) and (c). It is axiomatic that a verdict cannot be directed against the accused in a criminal case, 9 Wigmore 2495, p. 312, with the corollary that the judge is without authority to direct the jury to find against the accused as to any element of the crime, A.L.I. Model Penal Code 1.12(1) P.O.D. (1962). Although arguably the judge could direct the jury to find against the accused as to a lesser fact, the tradition is against it, and this rule makes no use of presumptions to remove any matters from final determination by the jury.

The only distinction made among presumptions under this rule is with respect to the measure of proof required in order to justify submission to the jury. If the effect of the presumption is to establish guilt or an element of the crime or to negative a defense, the measure of proof is the one widely accepted by the Courts of Appeals as the standard for measuring the sufficiency of the evidence in passing on motions for directed verdict (now judgment of acquittal): an acquittal should be directed when reasonable jurymen must have a reasonable doubt. Curley v. United States, 81 U.S. App. D.C. 389, 160 F.2d 229 (1947), cert. denied 331 U.S. 837, 67 S. Ct. 1511, 91 L. Ed. 1850; United States v. Honeycutt, 311 F.2d 660 (4th Cir. 1962); Stephens v. United States, 354 F.2d 999 (5th Cir. 1965); Lambert v. United States, 261 F.2d 799 (5th Cir. 1958); United States v. Leggett, 292 F.2d 423 (6th Cir. 1961); Cape v. United States, 283 F.2d 430 (9th Cir. 1960); Cartwright v. United States, 335 F.2d 919 (10th Cir. 1964). Cf. United States v. Gonzales Castro, 228 F.2d 807 (2d Cir. 1956); United States v. Masiello, 235 F.2d 279 (2d Cir. 1956), cert. denied Stickel v. United States, 352 U.S. 882, 77 S. Ct. 100, 1 L. Ed. 2d. 79; United States v. Feinberg, 140 F.2d 592 (2d Cir. 1944). But cf. United States v. Arcuri, 282 F. Supp. 347 (E.D.N.Y. 1968), aff’d 405 F.2d 691, cert. denied 395 U.S. 913; United States v. Melillo, 275 F. Supp. 314 (E.D.N.Y. 1968). If the presumption operates upon a lesser aspect of the case than the issue of guilt itself or an element of the crime or negativing a defense, the required measure of proof is the less stringent one of substantial evidence, consistently with the attitude usually taken with respect to particular items of evidence. 9 Wigmore 2497, p.324.

The treatment of presumptions in the rule is consistent with United States v. Gainey, 380 U.S. 63, 85 S. Ct. 754, 13 L. Ed. 2d 658 (1965), where the matter was considered in depth. After sustaining the validity of the provision of 26 U.S.C. 5601(b)(2) that presence at the site is sufficient to convict of the offence of carrying on the business of distiller without giving bond, unless the presence is explained to the satisfaction of the jury, the Court turned to procedural considerations and reached several conclusions. The power of the judge to withdraw a case from the jury for insufficiency of evidence is left unimpaired; he may submit the case on the basis of presence alone, but he is not required to do so. Nor is he precluded from rendering judgment notwithstanding the verdict. It is proper to tell the jury about the "statutory inference," if they are told it is not conclusive. The jury may still acquit, even if it finds defendant present and his presence is unexplained. [Compare the mandatory character of the instruction condemned in Bollenbach v. United States, 326 U.S. 607, 66 S. Ct. 402, 90 L. Ed. 350 (1945).] To avoid any implication that the statutory language relative to explanation be taken as directing attention to failure of the accused to testify, the better practice, said the Court, would be to instruct the jury that they may draw the inference unless the evidence provides a satisfactory explanation of defendant’s presence, omitting any explicit reference to the statute.

The Final Report of the National Commission on Reform of Federal Criminal Laws 103(4) and (5) (1971) contains a careful formulation of the consequences of a statutory presumption with an alternative formulation set forth in the Comment thereto, and also of the effect of a prima facie case. In the criminal code there proposed, the terms "Presumption" and "prima facie case" are used with precision and with reference to these meanings. In the federal criminal law as it stands today, these terms are not used with precision. Moreover, common law presumptions continue. Hence it is believed that the rule here proposed is better adapted to the present situation until such time as the Congress enacts legislation covering the subject, which the rule takes into account. If the subject of common law presumptions is not covered by legislation, the need for the rule in that regard will continue.

Report of House Committee on the Judiciary

Rule 303, as submitted by the Supreme Court was directed to the issues of when, in criminal cases, a court may submit a presumption to a jury and the type of instruction it should give. The committee deleted this rule since the subject of presumptions in criminal cases is addressed in detail in bills now pending before the committee to revise the federal criminal code. The committee determined to consider this question in the course of its study of these proposals.

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