WPIC 6.25 Presumed to Intend Natural Consequences of Acts

Decisions of the United States Supreme Court make it clear that the jury should not be instructed that the law presumes that a person intends the ordinary consequences of his or her own voluntary acts. Such an instruction unconstitutionally relieves the State of its burden of proving the elements of the crime beyond a reasonable doubt. Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

Presumptions and inferences generally. Criminal statutes sometimes are written in terms of presumptions or inferences. For example, some statutes state that fact B “is presumed” to follow from fact A; others indicate that fact B “may be inferred” from Fact A.

In the context of criminal jury trials, both of these formulations can be problematic. Presumptions and inferences are generally not favored in the criminal law. See State v. Cantu, 156 Wn.2d 819, 826, 132 P.3d 725 (2006). Especially problematic are mandatory presumptions. Mandatory presumptions violate a defendant's due process rights if they relieve the State of its obligation to prove all elements of the crime charged beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. at 523–24; State v. Deal, 128 Wn.2d 693, 911 P.2d 996 (1996).

For this reason, Washington cases strongly suggest that jury instructions should be written in terms of what the jury “may infer,” rather than in terms of a presumption, even when the statute uses presumption language. See, e.g., State v. Johnson, 100 Wn.2d 607, 674 P.2d 145 (1983), overruled on other grounds by State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000 (1985).

A permissive inference suggests a possible conclusion that the jury can reach if it finds that a predicate fact has been proved, but it does not require the jury to reach that conclusion. As such, inferences are less likely to implicate the constitutional concerns associated with mandatory presumptions; the State is not relieved of the burden of persuasion and is still required to convince the jury that the suggested conclusion should be inferred on the predicate facts proved. Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985).

Even permissive inferences, however, need to be carefully considered before they are included in a jury instruction. Permissive inferences are constitutional only if fact B flows “more likely than not” from fact A; indeed, in cases in which the inference is the sole and sufficient proof of an element, a higher standard of reasonable doubt may well be triggered. See State v. Randhawa, 133 Wn.2d 67, 76, 941 P.2d 661 (1997); State v. Hanna, 123 Wn.2d 704, 710–11, 871 P.2d 135 (1994); State v. Sandoval, 123 Wn.App. 1, 5, 94 P.3d 323 (2004) (referring to opinions that have discussed a higher standard of reasonable doubt, but noting that the state Supreme Court has not yet applied it); State v. Farr-Lenzini, 93 Wn.App. 453, 469 n.7, 970 P.2d 313 (1999) (same).

Instructing jurors on permissive inferences can raise other problems as well. Sometimes an inference is so apparent that it does not need to be, and should not be, stated for the jury. There are an unlimited number of inferences that jurors may make, yet these are not singled out for special jury instructions. Depending on the facts of the case and the particular statutory inference, an instruction that emphasizes one permissive inference could be construed as a judicial comment on the evidence.

Analysis of permissive inferences involves a bit of a conundrum. The more that an inferred fact is independently supported by other evidence in the case, the less is the need to instruct on the inference. Yet, the less the supporting evidence, the more difficult might it be to satisfy the due process requirements highlighted above.

Practical implications. For all the reasons discussed above, the WPI Committee recommends against routinely instructing jurors on inferences. Inference instructions should be used only after the judge carefully considers the evidence and inference involved in the particular case. See, e.g., State v. Randhawa, 133 Wn.2d at 76 (deciding whether to instruct on an inference requires a case-by-case analysis); State v. Hanna, 123 Wn.2d at 712 (same).

For discussion of specific inferences, see the Comments for the applicable instructions throughout the criminal pattern instructions.

If the court decides to give an instruction on a permissive inference, the instruction must clearly indicate that the inference is permissive, not mandatory. The instruction should also inform jurors that they are to consider the inference together with any evidence in the case that bears on the issue. See, e.g., State v. Farr-Lenzini, 93 Wn.App. at 470; Schwendeman v. Wallenstein, 971 F.2d 313 (9th Cir. 1992) (finding unconstitutional an inference instruction because it improperly focused the jury's attention on only one factor instead of on all the relevant evidence). An instruction could be drafted using the following format:

The instruction must also avoid any suggestion that the defendant has the burden of disproving the inferred fact if it is an element of the crime charged. Any suggestion to this effect, in this instruction or in other instructions, impermissibly relieves the State from proving all elements of the crime charged.

Although the two leading cases in Washington were nonjury trials, the Supreme Court has made it clear that the same rules would apply in jury cases. State v. Drum, 168 Wn.2d 23, 225 P.3d 237 (2010) (in burglary case, trial court properly interpreted underlying statute as creating permissible inference of intent, but not shifting any burden to the defendant to disprove intent); State v. Cantu, 156 Wn.2d at 826 (in burglary case, trial court erred in interpreting underlying statute as requiring defendant to disprove intent).