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VOLUME 16 - CHAPTER 300
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300.5 Misinstruction On Burden Of Proof (Due Process/Trial By Jury)

    300.5.1 Constitutional Claims: Failure To Properly Define The Prosecution's Burden
    300.5.2 Constitutional Claims: Improper Presumption Which Lessens The Prosecution's Burden
    300.5.3 Constitutional Claims: Instructions Which Shift The Burden
    300.5.4 Constitutional Claims: Irrational Use Of Permissive Inference

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PRACTICE NOTE: In Sullivan v. Louisiana (1993) 508 US 275, 277 [113 SCt 2078; 124 LEd2d 182], in an opinion by Justice Scalia, the court held that Cage error (erroneous instruction upon proof beyond a reasonable doubt) is a violation of the due process clause (5th and 14th Amendments) and the right to trial by jury (6th Amendment) and is reversible per se. The court's reasoning was as follows: Because it is the prosecution's burden to show "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained" (Chapman v. California (1967) 386 US 18, 24 [87 SCt 824; 17 LEd2d 705]) certain errors, "whose precise effects are unmeasurable but without which a criminal trial cannot reliably serve its function" (Sullivan, 124 LEd2d at 191) are reversible per se. Thus, an instructional error which misdescribes the burden of proof, and thus "vitiates all the jury's findings," can never be shown to be harmless. In short, the consequences of such an error "are necessarily unquantifiable and indeterminate" (Id. at 191) and thus the prosecution can never meet its burden of proving that such an error is harmless. (See also Lanigan v. Maloney (1st Cir. 1988) 853 F2d 40, 46-47 [instruction equating proof beyond a reasonable doubt with "proof to a degree of moral certainty," coupled with confusing civil standard of preponderance, created a significant risk that jury would find guilt based on a level of proof below that required by the Due Process Clause]; People v. Roder (CA 1983) 33 C3d 191, 498-99 [189 CR 501].)

    See NCJIC Chapter 270 [Burdens And Standards Of Proof].

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PRACTICE NOTE: Instructions which lessen the state's burden of proof or shift that burden to the defendant violate the 6th Amendment right to trial by jury and the due process clause of the 14th Amendment. (Yates v. Evatt (1991) 500 US 391, 447 [111 SCt 1884; 114 LEd2d 432] [instruction that "malice is implied or presumed" from the "willfull, deliberate, and intentional doing of an unlawful act," or from the "use of a deadly weapon" violated due process]; Carella v. California (1989) 491 US 263, 265-66 [109 SCt 2419; 105 LEd2d 218] [instructing jury as to mandatory presumptions concerning elements of offense violate due process because they "directly foreclosed independent jury consideration of whether the facts provided established certain elements" of the charged offense, and relieved the state of its burden of proof]; Ulster County v. Allen (1979) 442 US 140, 157 [99 SCt 2213; 60 LEd2d 777] [instruction embodying a permissive inference may be unconstitutional "if, under the facts of the case, there is no rational way the trier of fact could make the connection permitted by the inference"]; Francis v. Franklin (1985) 471 US 307, 313-15 [105 SCt 1965; 85 LEd2d 344]; Martinez v. Borg (9th Cir. 1991) 937 F2d 422, 423 ["Beeman error is constitutional error because the jury did not have the opportunity to find each element of the crime beyond a reasonable doubt"]; Batiste v. Blackburn (5th Cir. 1986) 786 F2d 704, 705; Dickey v. Lewis (9th Cir. 1988) 859 F2d 1365, 1368-70 [reasonable juror could have construed instruction ("intent to kill may be presumed from use of a deadly weapon") in an unconstitutional burden-shifting manner]; Miller v. Norvell (11th Cir. 1985) 775 F2d 1572, 1574-76 [instruction in language of statute (that proof of a specified fact "shall constitute prima facie evidence" of intent) created unconstitutional mandatory rebuttable presumption]; People v. Rivers (CA 1993) 20 CA4th 1040, 1047 [25 CR2d 602] [evaluating "probability of truth" standard of CALJIC 2.21.2 (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL (West, 6th Ed. 1996)) under federal standard of prejudice]; People v. Dyer (CA 1988) 45 C3d 26, 62 [246 CR 209] [Beeman error]; People v. Roder (CA 1983) 33 C3d 491, 496 [189 CR 501].)

See generally, Annotation, Supreme Court's Views As To Prejudicial Effect In Criminal Case Of Erroneous Instructions To Jury Involving Burden Of Proof Or Presumptions, 23 LEd2d 812.

See also Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

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 VOLUME 16 - CHAPTER 300

PRACTICE NOTE: Jury instructions which shift to defendant the burden of disproving the existence of an element of the offense violate due process. (See Sandstrom v. Montana (1979) 442 US 510, 526 [99 SCt 2450; 61 LEd2d 39].) However, it does not necessarily implicate due process to place the burden of persuasion upon the defendant to prove an affirmative defense. (Martin v. Ohio (1987) 480 US 228, 234-35 [107 SCt 1098; 94 LEd2d 267]; see also LaFave & Scott, Substantive Criminal Law (West, 1986) § 1.8.)

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

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PRACTICE NOTE: Where an inference of guilt is permissive rather than mandatory, the prosecution's use of the inference comports with due process requirements unless, under the facts of the case, there is no rational way for the jury to make the logical connection which the inference permits. (Ulster County Court v. Allen (1979) 442 US 140, 157 [99 SCt 2213; 60 LEd2d 777]; see also Francis v. Franklin (1979) 471 US 307, 314-15 [105 SCt 1965; 85 LEd2d 344].)

    "[A] criminal statutory presumption must be regarded as 'irrational’ or 'arbitrary,’ and hence unconstitutional unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact upon which it is made to depend. [Footnote omitted]." (Leary v. U.S. (1969) 395 US 6, 36 [89 SCt 1532; 23 LEd2d 57]; see also Ulster County, 442 US at 165-66.)

    See also NCJIC 6.1.1 [The Prosecution Should Not Be Permitted To Obtain Instructions Which Comment On The Evidence].

See Capital Punishment Handbook [3.5.1 a. Burden-Shifting Instructions: General Principles And Authorities].

See 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 5.8 [Presumptions] (2000).