Alaska Comm. R. Evid. 303
The word "presumption" is used in this Rule in the same manner as in Rule 301. The Reporter's Comment accompanying Rule 301 explains this use in detail. As was the case with presumptions operating in civil cases, the legislature sometimes creates "presumptions" without using the word "presumption." For example, the legislature may employ the term "prima facie evidence", which is covered by subdivision (b). See, e.g., AS 11.20.220 (Evidence of knowledge of insufficient funds); AS 11.20.250 (Evidence of intent to defraud), quoted in Selman v. State, 411 P.2d 217 (Alaska 1966).
The Advisory Committee on the Federal Rules expressed its opinion that "[i]t is axiomatic that a verdict cannot be directed against the accused in a criminal case . . . . 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 . . . Although arguably the judge could direct the jury to find against the accused as to a lesser fact, the tradition is against it . . ." Without making any constitutional decisions, Rule 203(c) accepted this opinion as expressing sound policy and denied judges the power to bind juries to facts believed by the judges to be beyond reasonable dispute. The instant rule is in accord. A presumption cannot be used against a defendant as a device to preempt the jury's function of finding facts and assessing guilt and innocence.
When a presumption is directed against the government, different policies govern, and a presumption may result in a directed verdict or peremptory instruction in favor of a defendant. Presumptions working against the government are treated like civil presumptions under Rule 301 and will not be discussed in this Comment.
If a presumption cannot be binding on a defendant, what is its utility? Judge Weinstein identifies a two-fold function:
Presumptions are utilized to overcome two separate problems in federal law. Primarily this function is to lessen the prosecution's burden of establishing guilt by authorizing short-cuts in proof and exerting pressure on the person with the most knowledge to come forward with an explanation. . . .
In addition, a presumption may serve the secondary function of making undesirable activities amenable to federal jurisdiction.
1 Weinstein's Evidence, Paragraph 303 [01] (1975). The second function is of no concern to the states in their lawmaking activities. But a third function may be important. "In a borderline case a judge may be influenced by the legislative judgment of Congress [or a state legislature] to submit a basic fact to a jury which he would not have submitted as merely circumstantial evidence of the presumed fact." Id. Thus, the first and third functions are the important ones for the states. There also may be a fourth function -- to make clear the intent of the legislature in special circumstances.
Subdivision (a) allows presumptions to perform their intended functions, but prevents them from exerting too great an impact on the outcome of a case. If a presumption is created by the legislature or the courts, it serves as an incentive for the accused to submit rebuttal evidence. If no rebuttal evidence or insufficient evidence is offered, the court, without using the word "presumption," will instruct the jury that it may, but is not bound to, infer the existence of the presumed fact from proof of the basic fact. Such an instruction is couched purely in terms of a permissible inference; no attempt is made to guide the jury in assessing the sufficiency of the inference to prove guilt. This mandatory instruction is in the nature of a mild comment on the evidence. No good reason appears why the legislature or the courts cannot require a specific non-binding instruction when they deem it desirable.
If the accused offers evidence to rebut or meet the presumption, the giving of an instruction is discretionary. In instances where the nature of a presumption directed against the accused is such that the relationship between the proved fact and the presumed fact is self-evident or apparent, no instruction should normally be given by the court if the accused offers evidence to rebut or meet the presumption, since in such instances, a jury instruction would tend to emphasize unduly and unnecessarily the existence of the presumption. On the other hand, in circumstances where there is no obvious connection between the proved fact and the presumed fact, an instruction to the jury regarding the existence of the presumption would ordinarily be appropriate.
A good example of this latter situation would be the standard case involving the presumption created by a Breathalyzer examination. The proved fact in such a case would be a Breathalyzer reading of .10 percent blood alcohol or greater; the fact to be presumed from the proved fact is that the accused was under the influence of intoxicating liquor at the time of the test. Under normal circumstances, with no expert testimony concerning the significance of .10 percent blood alcohol level in terms of its effect on an individual's sobriety, the mere awareness of the proved fact -- i.e., the .10 percent blood alcohol level -- would be meaningless to the average juror. Assuming the accused in such a situation was willing to concede the blood alcohol level, but opted to rebut the presumption by arguing that, despite the blood alcohol level, he was not in fact impaired, the mere establishment of blood alcohol level by the prosecution would be rendered wholly ineffective in the absence of a specific instruction to the jury concerning the presumption which arises from proof of a blood alcohol level of .10 percent or greater. It should be noted that the burden of coming forward is less onerous here than in Rule 301. This reflects a judgment that the defendant should have the benefit of reasonable doubts.
One advantage of the approach taken in this Rule is that it probably avoids the problem of applying to most presumptions the confusing test of constitutionality compelled by the following decisions of the United States Supreme Court: Tot v. United States, 319 U.S. 463, 87 L.Ed. 1519 (1943), United States v. Gainey, 380 U.S. 63, 13 L.Ed.2d 658 (1965), United States v. Romano, 382 U.S. 136, 15 L.Ed.2d 210 (1965), Leary v. United States, 395 U.S. 6, 23 L.Ed.2d 57 (1969), Turner v. United States, 396 U.S. 398, 24 L.Ed.2d 610 (1970), and Barnes v. United States, 412 U.S. 837, 37 L.Ed.2d 380 (1973).
As long as a court confines itself to a description of a permissible inference, avoiding a statement like the trial judge's in Barnes -- " [i]f you should find beyond a reasonable doubt . . . that the mail . . . was stolen, . . . you would ordinarily be justified in drawing the inference . . . unless such possession is explained . . . ." (emphasis added) -- and avoiding the legislative language in Leary employed by the court in its instruction -- "[w]henever . . . the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains . . ." (emphasis added) -- the relatively mild comment in the form of an instruction commanded by this Rule is likely to be sustained in light of the traditional power of federal courts to comment on the weight of the evidence in criminal cases and the nature of the instruction.
Another advantage of the rule is that it avoids the complications of the proposed Federal Rules. They caused the eminent jurist, Henry Friendly, to complain to the Congress that he did not understand them. See Hearings on Proposed Rules of Evidence Before the Subcomm. on Crim. Justice of the House Comm. on the Judiciary, 93rd Cong., 1st Sess., at 249 (1973). This is not surprising, since many lawyers would have the same difficulty.
A final advantage is that by creating presumptions that are covered by this rule, the legislature makes the same "statement" to courts about desired treatment of borderline cases as it makes with more powerful presumptions.
The legislature and the courts remain free under Rule 303 to create presumptions with a different effect than that provided here. For example. AS 41.15.110(c) (Allowing fire to escape or failure to make effort to extinguish; misdemeanor) provides that " [i]n a criminal action brought under this section, the escape of the fire is presumptive evidence of negligence by the person responsible for starting the fire and unless rebutted is sufficient to sustain a conviction." While this statute avoids any implicit reference to silence on the part of the defendant and thus is less worrisome than some instructions approved by other courts, see, e.g., United States v. Gainey, supra, application of the statute may be challenged more readily under the line of United States Supreme Court cases previously cited than under this rule.
This rule does not establish that the government must always bear the burden of persuasion on every issue litigated in a criminal case. Whether an accused sometimes may be compelled to bear the burden of persuasion is beyond the scope of these Rules of Evidence. See generally Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed.2d 508 (1975); Patterson v. New York, 432 U.S. 197, 53 L.Ed.2d 281 (1977). The language of the Rule assumes, however, that in most instances when the government seeks the benefits of a presumption it bears the burden of persuasion.
Nothing in this rule eliminates the instruction that a defendant is presumed to be innocent. This presumption is not an evidence presumption, but a special casting of the burden placed on the government to prove guilt beyond a reasonable doubt.
Alaska Comm. R. Evid. 303