Haw. Rev. Stat. § 306
HRS § 306
RULE 306 COMMENTARY
This rule is similar to Uniform Rule of Evidence 303 and the U.S. Supreme Court proposal for Fed. R. Evid. 303, which was not enacted, see Rules of Evidence for U.S. Courts and Magistrates as promulgated by the U.S. Supreme Court, 28 App. U.S. Code Service, App. 6 (1975), with the addition of subsection (b), which provides for presumptions against the state, and subsection (c), which makes provision for inconsistent presumptions.
The operation of presumptions against the accused in criminal cases is hedged about by constitutional limitations because, as the Supreme Court pointed out in County Court v. Allen, 442 U.S. 140 (1979), of the tendency of presumptions to "undermine the factfinder's responsibility at trial...to find the ultimate facts beyond a reasonable doubt." 442 U.S. at 156. To facilitate analysis on this point, Mr. Justice Stevens, writing for the Allen court, attempted a distinction between the "entirely permissive inference or presumption," e.g., Barnes v. United States, 412 U.S. 837 (1973) (inference of guilty knowledge from fact of possession of recently stolen property), and the "more troublesome" mandatory presumption, e.g., United States v. Romano, 382 U.S. 136 (1965), which "tells the trier that he or they must find the elemental [ultimate] fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts," 442 U.S. at 157.
Regarding the permissive inference or presumption, the Allen court suggested that, because the trier of fact is free to draw or to reject the inference, this device potentially trenches on the beyond-a-reasonable-doubt burden "only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference." Id. The Allen presumption was a permissive one, involving a New York statute making the presence of a firearm in an auto presumptive evidence of illegal possession of the weapon by all occupants of the vehicle. Since the trial judge told the jury that the presumption was entirely permissive and could be ignored even in the absence of rebutting evidence, the Allen court held: "The application of the statutory presumption in this case therefore comports with the standard laid down in Tot v. United States, 319 U.S. 463, 467, and restated in Leary v. United States, 395 U.S. at 36. For there is a 'rational connection' between the basic facts that the prosecution proved and the ultimate fact presumed, and the latter is 'more likely than not to flow from' the former." 442 U.S. at 165.
Rejecting an argument that the necessary "connection" between basic and presumed facts should satisfy the more stringent reasonable-doubt standard, the Allen court stated:
[T]he prosecution may rely on all of the evidence in the record to meet the reasonable doubt standard. There is no more reason to require a permissive statutory presumption to meet a reasonable doubt standard before it may be permitted to play any part in a trial than there is to require that degree of probative force for other relevant evidence before it may be admitted. As long as it is clear that the presumption is not the sole and sufficient basis for a finding of guilt, it need only satisfy the [more-likely-than-not] test described in Leary. [442 U.S. at 167.]
In the context of the facts in Allen, the court held that this test was met.
The Allen dissent, authored by Justice Powell and joined by Justices Brennan, Marshall, and Stewart, disagreed not with the more-likely-than-not standard for testing the connection between basic and presumed facts but with the Allen majority's application of that standard:
As I understand it, the Court today does not contend that in general those who are present in automobiles are more likely than not to possess any gun contained within their vehicles. It argues, however, that the nature of the presumption here involved requires that we look not only to the immediate facts upon which the jury was encouraged to base its inference, but to the other facts "proved" by the prosecution as well.... The possibility that the jury disbelieved all of this evidence, and relied on the presumption, is simply ignored. [442 U.S. at 174-75.]
The problem with this approach, according to the dissenters, is that, since the jury was told that it could convict on the presumption alone, it may have done just that. "Under the Court's analysis, whenever it is determined that an inference is 'permissive,' the only question is whether, in light of all of the evidence adduced at trial, the inference recommended to the jury is a reasonable one. The court has never suggested that the inquiry into the rational basis of a permissible inference may be circumvented in this manner." 442 U.S. at 176.
In dicta, the Allen majority said that mandatory presumptions, because of their significant impact on the factfinder, must be examined facially "to determine the extent to which the basic and elemental facts coincide." 442 U.S. at 158. This is so because this device tends to force the factfinder to draw the inference irrespective of other facts in the case. Hence, "the analysis of the presumption's constitutional validity is logically divorced from those facts and based on the presumption's accuracy in the run of cases." Id. Regarding the nature of the required connection for mandatory presumptions, the court merely said that the prosecution "may not rest its case entirely on a presumption unless the fact proved is sufficient [on facial examination] to support the inference of guilt beyond a reasonable doubt." 442 U.S. at 167.
In State v. Brighter,61 Haw. 99,595 P.2d 1072 (1979), the Hawaii Supreme Court examined the "prima facie evidence" provision of Hawaii Rev. Stat. § 712-1251 (1976): "[T]he presence of a dangerous drug, harmful drug, or detrimental drug in a motor vehicle, other than a public omnibus, is prima facie evidence of knowing possession thereof by each and every person in the vehicle at the time the drug was found." Appellant Brighter was convicted of knowing possession of marijuana, and the supreme court noted that the prosecution relied "entirely" on the prima facie evidence device, 61 H. at 102, 595 P.2d at 1074.
Although the trial court instructed the jury that "the presence of a detrimental drug in a motor vehicle...is prima facie evidence of knowing possession," the supreme court labeled the device a permissive inference which authorized, but did not compel, the inference of guilt. The court then analyzed the U.S. Supreme Court decisions on criminal presumptions (except County Court v. Allen, supra, not yet then decided), and decided that the particular inference authorized in Brighter passed the "rational connection," "more likely than not," and "reasonable doubt" tests; therefore, the court had "no need to resolve the question whether an inference satisfying the 'more likely than not' requirement must also comply with the criminal reasonable doubt standard." 61 H. at 109, 595 P.2d at 1078. The court reversed Brighter's conviction, however, because, taking judicial notice of legislative facts (see the commentary to Rule 201 supra), the court held that the statutory inference of knowing possession is constitutionally valid under the various tests only as applied to "dealership quantities" of drugs, a limitation not imposed by the trial court: "Therefore, we would require that the prosecution establish beyond a reasonable doubt that the quantity of drug involved is clearly greater than a quantity which may be possessed for personal use.... Absent such a determination, a jury would not be justified in concluding that the statutory inference should be applied." 61 H. at 109-110, 595 P.2d at 1079.
Several principles emerge from the Allen and Brighter decisions. To begin with, the Allen dicta strongly suggests that, in a case such as Brighter where the inference or presumption is the only evidence of guilt, the connection between basic and ultimate facts must satisfy the reasonable doubt standard. Indeed, such a conclusion is virtually inescapable where the final determination of guilt rests solely on the permitted inference. Brighter thus appears to embody the reasonable-doubt exception to the Allen more-likely-than-not standard for permissive inferences or presumptions. For the same reason, the Brighter court appears to have been correct in assessing the facial validity of the inference. Whether or not a facial analysis would be required in a case (such as Allen) where the prosecution relies on a presumption plus other evidence of guilt will depend upon analysis of the Allen opinions by the Hawaii Supreme Court in subsequent cases.
A more difficult problem, suggested by the alternative holding in Brighter, concerns the distinction between permissive and mandatory criminal presumptions. Although the Brighter device was classified by the court as a permissive inference, the trial court had delivered the following additional instruction to the jury:
Prima facie evidence of a fact is evidence which if accepted in its entirety by the trier of fact, is sufficient to prove the fact, provided that no evidence negativing the fact, which raises a reasonable doubt in the mind of the trier of fact, is introduced.
This instruction, concluded the Brighter court, "served to shift the burden of proof to appellant" and thus raised the possibility that the jury could "have been misled into thinking that they were required to find the element of knowing possession." The court accordingly held that in the absence of a clarifying instruction that the jury "could -- but was not required to -- find the element of knowing possession upon proof of the underlying facts," 61 H. at 110-111, 595 P.2d at 1080, the burden of proof had been impermissibly shifted to the defendant. Accord, State v. Pimentel, 61 H. 318, 603 P.2d 141 (1979).
A close reading of County Court v. Allen, supra, 442 U.S. at 157-159 n.16, suggests the difficulty of categorizing criminal presumptions, which process necessarily depends upon the content of the jury instructions. The Allen court's example of a "mandatory" presumption was the one litigated in United States v. Romano, supra, where the court told the jury that presence at a still "shall be deemed sufficient evidence to authorize conviction" for possession of an illegal distillery. Since Brighter and Pimentel, supra, suggest strongly that mandatory criminal presumptions are not permissible in Hawaii, trial judges are well advised to exercise great care in drafting suitable jury instructions in these cases. This is all the more so in light of Rule 1102 infra, which prohibits the court from commenting upon the evidence. In the absence of comment by the judge on the other evidence in the case, the presumption instruction, no matter how carefully couched, will be spotlighted in the jury charge, thereby focusing the factfinder's attention on the device and maximizing the coercive impact.
Subsection (a): Presumptions against the accused, including "prima facie" evidence provisions (see Rule 305 supra) are governed exclusively by this subsection. Subsection (a)(2) addresses the typical case, see State v. Brighter, supra, where the presumption establishes or tends to establish one or more of the ultimate elements of the offense. In such a case the evidence as a whole, including the basic facts giving rise to the presumption, must be of such quality and quantity that a reasonable juror could find the presumed fact beyond a reasonable doubt. The requisite connection between basic facts, standing alone, and the presumed fact is not addressed. If the basic fact is the only evidence of the presumed fact, the reasonable doubt standard necessarily applies, see the foregoing analysis of Brighter. If, on the other hand, there is other evidence of the presumed fact in addition to the basic fact or facts, the more-likely-than-not standard of Allen comports with the U.S. Supreme Court's minimum due process requirement. This is a question that is directed to the court, and was left open in Brighter.
Subsection (a)(3) codifies the Brighter holding that the basic facts must be established beyond a reasonable doubt for the presumption to be operative. In addition, the factfinder must be instructed carefully and emphatically that the presumption is permissive. State v. Pimentel, supra. In other words, the effect of a presumption against the accused is to create an inference.
The Hawaii Supreme Court addressed this issue directly in State v. Cuevas, 53 H. 110, 113, 488 P.2d 322, 324 (1971), holding unconstitutional a statute that provided: "When the act of killing another is proved, malice aforethought shall be presumed, and the burden shall rest upon the party who committed the killing to show that it did not exist, or a legal justification or extenuation therefor." The court said:
Under the language of the statute, the burden imposed upon the accused is not merely a burden of going forward with the evidence or of raising a reasonable doubt, but is a burden of persuasion of the nonexistence of an essential element of the crime of murder.... We hold that the statute is invalid. Under our legal system, the burden is always upon the prosecution to establish every element of crime by proof beyond a reasonable doubt, never upon the accused to disprove the existence of any necessary element.
Consistent with this position, under the present rule a presumption imposes no burden upon the accused. He may, if he chooses, introduce evidence to rebut the presumption. Ultimate burden always rests with the State.
Subsection (b): The constitutional limitations that require the special rules in subsection (a) do not apply to presumptions against the State. Presumptions against the State, therefore, are governed by the civil presumption standards of Rules 301 through 305.
Subsection (c): This provision is identical in form and intent with Rule 302(b) supra.
Rule 306(a) presumptions against the accused, discussed. 78 H. 262, 892 P.2d 455. Because court instructed jury regarding "presumptions" within the meaning of this rule, and notwithstanding that court advised jurors that they might, but were not required to, conclude the existence of the assumed fact, court erred in failing to instruct jury, pursuant to subsection (a)(3), that jury was required to find "the basic facts beyond a reasonable doubt". 88 Hawai'i. 296, 966 P.2d 608. Due process right violated where circuit court's instruction to jury regarding the statutory presumption created by § 708-801(4) failed to further instruct jury pursuant to subsection (a) that the presumption is merely a permissible inference of fact and that in order to apply the presumption, the jury must find that the presumed fact exists beyond a reasonable doubt. 88 H. 216 (App.), 965 P.2d 149.