Presumptions and Due Process

Book recommendation: Due Process of Law: A Brief History

By Yasser Latif Hamdani

18th Amendment introduced Article 10-A to the Constitution of Pakistan. Consequentloy we have seen litigators in Pakistan challenging the Financial Institutions (Recovery of Finances) Ordinance 2001 on the ground that sections 9 and 10 of the statute attach a presumption of accuracy to bank's documents. It is therefore not out of place to consider how US- where due process comes from (see 14th Amendment of the US Constitution) - has tackled the challenge to the law of presumptions:

Connecticut v. Johnson (1983), 460 U.S. 73 -- (1) At p. 84. An instruction that a person is conclusively presumed to have intended the natural and necessary consequences of his voluntary acts is erroneous, having the effect of a directed verdict of guilty, which is not permitted in criminal cases, no matter how strong the proof. (2) Such constitutional errors are still subject to determination whether they were harmless beyond a reasonable doubt. Also see Rose v. Clark (1986), 478 U.S. 570; Burger v. Kemp (1987), 483 U.S. 776, 781-782 (Harmlessness of failure to object to burden shifting instruction in the context of claimed ineffective assistance of counsel).

Mullaney v. Wilbur (1975), 421 U.S. 684 -- A defendant may not be given the burden of disproving an element of a crime through application of a presumption. Maine homicide statute provided a conclusive presumption of malice aforethought from proof that the homicide was both intentional and unlawful. To be found guilty of manslaughter, the defendant had to prove by a preponderance that he acted in the heat of passion or on sudden provocation.

Barnes v. United States (1973), 412 U.S. 837 -- A jury instruction regarding a permissive inference of guilty knowledge from unexplained possession of recently stolen property satisfies due process if it does not serve to excuse the prosecution from its burden of proof beyond a reasonable doubt. Also see State v. Arthur (1975), 42 Ohio St. 2d 67; State v. Giles (August 7, 1980), Franklin Co. App. No. 80AP-297, unreported (1980 Opinions 2296).

Francis v. Franklin (1985), 471 U.S. 307 -- A recitation that a presumption may be rebutted does not avoid a due process violation if the charge may be interpreted as creating a mandatory presumption unless overcome by evidence put on by the defense. Also see Yates v. Aiken (1988), 484 U.S. 211 -- Francis v. Franklin applies retroactively. Compare Ulster County Court v. Allen (1979), 442 U.S. 140.

Cooper v. Oklahoma (1996), 517 U.S. 348 -- It is a violation of due process to require the defendant to establish by clear and convincing evidence that he is not competent to stand trial. The trial of a person who is not competent violates due process. The use of the clear and convincing evidence standard, instead of the usual preponderance, makes it possible to try a person who more likely than not is incompetent.

State v. Garner (1995), 74 Ohio St. 3d 49, 60 -- "The law has long recognized that intent, lying as it does within the privacy of a person's own thoughts, is not susceptible to objective proof. The law recognizes that intent can be determined from the surrounding facts and circumstances, and persons are presumed to have intended the natural, reasonable and probable consequences of their voluntary acts...Intent '"'"can never be proved by the direct testimony of a third person and it need not be. It must be gathered from the surrounding facts and circumstances....'"'"' Similarly, while guilt of aggravated murder requires proof of specific intent to kill, R.C. 2903.01 contemplates that such an intent may be inferred in a felony-murder when the offense and the manner of its commission would be likely to produce death." (Citations omitted.)

State v. Collier (1991), 62 Ohio St. 3d 267, 269 -- "It is well established that all legislative enactments must be afforded a strong presumption of constitutionality."

State v. Webb (1998), 126 Ohio App. 3d 808 -- In a driving under suspension case, the court may not instruct the jury that the defendant is conclusively presumed to have received notice of suspension upon proof the established procedure for giving notice was followed.

State v. Adams (1982), 3 Ohio App. 3d 50 -- In a prosecution for passing bad checks, inclusion of instructions on the presumption set forth in R.C. 2913.11(B) is proper even though defendant has introduced evidence rebutting the presumption. However, the instructions must also address the nature and effect of rebuttable instruction in a criminal case so that the charge does not have the effect of shifting a burden of proof to the defendant.

State v. Scott (1983), 8 Ohio App. 3d 1 -- Due process violation found in presumption of elements of theft of cable services from unreported possession of equipment capable of doing so.

State v. Wilcox (1983), 10 Ohio App. 3d 11 -- The OMVI per se offense set forth in R.C. 4511.19(A) does not create an unconstitutional presumption. Instead, the offenses is driving with a prohibited concentration of alcohol. Also see State v. Tanner (1984), 15 Ohio St. 3d 1, 6.

State v. Ebright (1983), 11 Ohio App. 3d 97 -- Headnotes 1 and 2: "(1) The underlying principle of the rule against drawing an inference from another inference is that the foundation of the second inference is so insecure that reliance upon it would result in an inferred fact which is merely speculative in nature. (2) The test to be applied to inferred ultimate facts in civil cases is whether or not the inferences drawn and relied upon were more probable than other inferences which might also have been drawn from the underlying facts. In a criminal case, the test for reliability is more stringent: when a conviction is to be based upon inferences drawn from underlying facts, the inferences which support guilt must be so strong that they exclude the drawing from the same underlying facts of reasonable inferences which support innocence."

Motorists Mutual Insurance Co. v. Hamilton Township Trustees (1986), 28 Ohio St. 3d 13 -- Syllabus: "Where a jury bases its verdict partly on a reasonable inference drawn from facts in evidence, and partly on an inference drawn both from those same facts and common human experience, the verdict is not the result of the impermissible stacking of an inference upon an inference."

Article III of the Federal Rules of Evidence deals with presumptions and burdens of proof. It applies to civil actions—cases arising under non-criminal laws, such as contract, property and tort.

Rule 301:

In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

At any given time, one party is obligated to produce evidence regarding a claim or defense. This is the burden of going forward. Rule 301 adopts a bursting bubble approach to the burden. When evidence is introduced that leads to a presumption of fact, the other side has the burden of going forward to rebut that presumption. If the presumption is adequately rebutted, it "bursts." Otherwise, the presumption is left intact.

For example, take a hypothetical civil case where one element of the claim is that it was raining on a given night. The plaintiff introduces evidence that the ground was wet the next morning. This creates a presumption that it rained the night before. The defendant must then rebut this presumption with other evidence: maybe eyewitnesses who say it wasn't raining, maybe evidence that a truck dumped water on the ground overnight. If a preponderance of the evidence disproves the presumption, the bubble bursts, the presumption is lifted, and the factfinder cannot presume that it was raining that night. If the evidence is insufficient, the factfinder can make the presumption.

Presumptions governed by this rule are given the effect of placing upon the opposing party the burden of establishing the nonexistence of the presumed fact, once the party invoking the presumption establishes the basic facts giving rise to it. The same considerations of fairness, policy, and probability which dictate the allocation of the burden of the various elements of a case as between the prima facie case of a plaintiff and affirmative defenses also underlie the creation of presumptions