THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
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VOLUME 1 - CHAPTER 6
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6.1 Permissive Inference As Improper Comment On Evidence

    6.1.1 The Prosecution Should Not Be Permitted To Obtain Instructions Which Comment On The Evidence
    6.1.2 If The Prosecution Gets Inference Instructions The Defense Should Also

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 1 - CHAPTER 6

   6.1.1    The Prosecution Should Not Be Permitted To Obtain Instructions Which Comment On The Evidence

PRACTICE NOTE: It is often assumed that "permissive inference" instructions may properly be given so long as they do not shift the burden of proof. (See e.g., Ervin’s, SOUTH CAROLINA CRIMINAL JURY INSTRUCTIONS 1-9, ¶ 2 [Malice Defined] (South Carolina Bar, 1995); State v. Peterson (SC 1985) 335 SE2d 800, 802. 8TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 4.13 [Specific Inferences] (2000) [citing Sandstrom v. Montana (1979) 442 US 510 [99 SCt 2450; 61 LEd2d 39].) However, another problem with such instructions is that they constitute a comment on specific evidence. (See NCJIC 1.4.7 [Avoid Argumentative Instructions] and NCJIC 309.5.4 [Instructions That Express An Opinion About The Guilt Of The Defendant] and NCJIC 309.5.5 [Argumentative Instructions].)

    For example, in U.S. v. Rubio-Villareal (9th Cir. 1992) 967 F2d 294, 295-300, the jury was instructed that it could infer knowledge of contraband contained in an automobile from the fact that the defendant was the driver of the vehicle and that the contraband was found inside the vehicle and concealed in its body. The 9th Circuit concluded that the instruction was an improper comment on the evidence which suggested that the judge thought there was sufficient evidence to convict and "by focusing the jury on two isolated facts, the instruction permitted the jury to convict without considering all the evidence presented at trial." (967 F2d at 300; see also U.S. v. Beltran-Garcia (9th Cir. 1999) 179 F3d 1200, 1207 [court pointed out the dangers of permissive inference instructions and stated that "[t]he government receives very little benefit from requesting these instructions, and should be discouraged from doing so"].)

    The instruction in Rubio-Villareal was held to be improper even though it specifically informed the jury that "you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrants any inference which the law permits the jury to draw." (967 F2d at 295.) Hence, the issue was not that the inference improperly shifted the burden but rather that it improperly focused the jury’s attention on specific evidence which is often the basis used for refusing a similar defense instruction which focuses on particular evidence. (See e.g., MICHIGAN CRIMINAL JURY INSTRUCTIONS 16.21 [Inferring State Of Mind] (ICLE, 2nd ed. 1999) [improper to inform jury may infer intent to kill from use of a dangerous weapon].)

    Another example is State v. Jenkins (WV 1994) 443 SE2d 244 where the jury was instructed, inter alia, as follows:

    "The defendant's state of mind may be inferred from the kind of weapon used ... you may infer that the defendant intended to kill if he/she used a dangerous weapon."

    The court concluded that this instruction was erroneous because it focused the jury's deliberation on the single fact of shooting with a deadly weapon. (443 SE2d at 256.)

    Similarly, State v. Olson (MN 1992) 482 NW2d 212, 215-16 held that a permissive inference of knowing possession, although constitutional, improperly gave undue emphasis to a single factor in the determination of the issue of constructive possession. (See also State v. LaBatte (MN 1992) 482 NW2d 217, 218 [permissive inference of knowing possession from defendant’s control of the automobile where the object was found was an improper focus upon only a single factor]; MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 20.57, comment [Additional Issue- Possession Of A Firearm] (West, 4th ed. 1999).)

    As observed in a 9th circuit opinion, "inference instructions in general are a bad idea. There is normally no need for the court to pick out one of several inferences that may be drawn from circumstantial evidence in order for that possible inference to be considered by the jury. Inferences can be argued without benefit of an instruction; indeed, inferences are more appropriately argued by counsel than accentuated by the court. Further, because they are a detour from the law which applies to the case, inference instructions tend to take the focus away from the elements that must be proved. In this way they do a disservice to the goal of clear, concise and comprehensible statements of the law for lay persons on the jury. Balanced inference instructions are also difficult to craft." (U.S. v. Warren (9th Circuit 1994) 25 F3d 890, 900, Rymer, concurring; see also 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 3.8, Comment [Direct And Circumstantial Evidence] (2000) ["Matters which might be the subject of [permissive inference] instructions are better left to argument of counsel subject to prior clearance with the court"]; but see U.S. v. Dixon (9th Cir. 2000) 201 F3d 1223, 1232-33.)

    In sum, either the defense should be able to obtain permissive inference instructions in its favor, or the prosecution should not be permitted to obtain such instructions in its favor. As the Oregon instruction committee observed, there are several reasons not to give permissive inference instructions:

    "(1)     In criminal cases, these instructions may unconstitutionally shift the burden of proof on an element of the crime from the prosecution to the defense. [Citations.]

    (2)     Instructions on a particular piece emphasize that evidence and may imply that the jury should accept the evidence or draw the suggested inference. [Citation.]

    (3)     The instructions tell jurors no more than they know by the exercise of common sense.

    (4)     These instructions invade the jury’s responsibility as the sole trier of fact. [Citations.]" (UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI User’s Guide V, 1-4.) [Inference And Evidentiary Instructions] (Oregon State Bar, 1998).)

    In sum, an inference instruction which favors the prosecution may be subject to objection as an improper comment on the evidence. (See generally NCJIC 1.4.7 [Avoid Argumentative Instructions]; see also NCJIC 6.1.1 [The Prosecution Should Not Be Permitted To Obtain Instructions Which Comment On The Evidence].)

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 1 - CHAPTER 6

    6.1.2    If The Prosecution Gets Inference Instructions The Defense Should Also

PRACTICE NOTE: If comment-on-the-evidence instructions are permitted regarding inferences which focus on evidence relied upon by the prosecution (but see NCJIC 6.1.1 [The Prosecution Should Not Be Permitted To Obtain Instructions Which Comment On The Evidence]), then the defense should be permitted to obtain similar fact-specific instructions.

    "The judge is the only nonpartisan lawyer in the courtroom, from whom the jury may properly expect a dispassionate and unslanted statement of the pertinent law. [Citations.]" (O’Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 8.02, [History Of Special Verdicts] p. 245 (West, 5th ed. 2000).) Hence, the "court has [a] duty to give balanced instructions...." (Id. at fn 4 [citing U.S. v. Matias (2nd Cir. 1988) 836 F2d 744.) "There should be absolute impartiality as between the People and the defendant in the matter of instructions ...." (People v. Moore (CA 1954) 43 C2d 517, 526-27 [275 P2d 485]; accord, Reagan v. U.S. (1895) 157 US 301, 310 [39 LEd 709].) Indeed, instructions which improperly favor the prosecution may violate the due process clause (5th and 14th Amendments) of the federal constitution. (See NCJIC 300.12.1 [Balance Between Prosecution And Defense: Due Process Requires Instructions Which Do Not Unduly Favor The Prosecution].)

    The required balance is not present when the prosecution is permitted to obtain "comment-on-the-evidence" instructions in the guise of permissive inferences while the defendant is precluded from obtaining similar instructions from the defense perspective.

    For example, the Illinois Pattern Instructions include the following instruction:

    "An agreement may be implied from the conduct of the parties although they acted separately or by different means and did not come together or enter into an express agreement."

(ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 17.13A [Agreement Implied From Conduct] (West, 4th ed. 2000).) The Committee Note for this instruction states that it may be given because it "would help the jury understand the issues." However, upon analysis, it is nothing more than a comment on the evidence and a statement of the prosecution's view of how that evidence satisfies the prosecution’s burden. Allowing such an instruction is inconsistent with the Committee’s disapproval "of instructions which comment on particular types of evidence...." (ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 3.00, Introduction [Particular Types Of Evidence] p. 85 (West, 4th ed. 2000).)

    The treatment of alibi in Illinois is another example:

    "The Committee decided to omit instructions on [alibi] because of its view that instructions should avoid commenting on particular types of evidence. [Citations.]" (ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 24-25.05, Committee Note [Alibi] (West, 4th ed. 2000). This ruling of "the Committee" seems inconsistent on its face with the ruling in ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 3d 17.13A [Agreement Implied from Conduct] (West, 4th ed. 2000), allowing specific instruction on implication of a conspiratorial agreement from the conduct of the parties.

    Another example is Kentucky which purports to follow the "bare-bones" method of jury instructions on evidentiary matters. This approach reasons that evidentiary instructions over-emphasize an aspect of the evidence and thus evidentiary matters should be omitted from the instructions and left to the lawyers to flesh out in closing arguments. (Cooper, KENTUCKY INSTRUCTIONS TO JURIES 1.09d [Role Of Jury In Assessing Evidence - Weight Of Evidence] (Anderson, 4th ed. 1999); see also McGuire v. Commonwealth (KY 1994) 885 SW2d 931, 936.)

    However, allowing instruction on specific permissive presumptions which are nothing more than a comment on the evidence is inconsistent with the "bare bones" approach.  For example, instructing the jury that it may presume that a person in possession of recently stolen property knew that such property was stolen (see Cooper, KENTUCKY INSTRUCTIONS TO JURIES 6.54C [Receiving Stolen Property-Less Than $300] (Anderson, 4th ed. 2001)), is nothing more than a specific comment on the evidence and a suggestion to the jury as to the inference which it might draw from that evidence. Instruction on such a presumption, therefore, would be inconsistent with a general rule that instructions upon specific evidentiary matters are not allowed.