County Court of Ulster Cty. v. Allen

Me. Justice Powell,

with whom Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall join,

dissenting.

I agree with the Court that there is no procedural bar to our considering the underlying constitutional question presented by this case. I am not in agreement, however, with the Court’s conclusion that the presumption as charged to the jury in this case meets the constitutional requirements of due process as set forth in our prior decisions. On the contrary, an individual’s mere presence in an automobile where there is a handgun does not even make it “more likely than not” that the individual possesses the weapon.

I

In the criminal law, presumptions áre used to encourage the jury to find certain facts, with respect to which no direct evidence is presented, solely because other facts have been proved. 1 See, e. g., Barnes v. United States, 412 U. S. 837 , 840 n. 3 (1973); United States v. Romano, 382 U. S. 136, 138 (1965). The purpose of such presumptions is plain: Like certain other jury instructions, they provide guidance for jurors’ thinking in considering the evidence laid before them. *169 Once in the juryroom, jurors necessarily draw inferences from the evidence — both direct and circumstantial. Through the use of presumptions, certain inferences are commended to the attention of jurors by legislatures or courts.

Legitimate guidance of a jury’s deliberations is an indispensable part of our criminal justice system. Nonetheless, the use of presumptions in criminal cases poses at least two distinct perils for defendants’ constitutional rights. The Court accurately identifies the first of these as being the danger of interference with “the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” Ante, at 156. If the jury is instructed that it must infer some ultimate fact (that is, some element of the offense) from proof of other facts unless the defendant disproves the ultimate fact by a preponderance of the evidence, then the presumption shifts the burden of proof to the defendant concerning the element thus inferred. 2

But I do not agree with the Court’s conclusion that the only constitutional difficulty with presumptions lies in the danger of lessening the burden of proof the prosecution must bear. As the Court notes, the presumptions thus far reviewed by the Court have not shifted the burden of persuasion, see ante, at 157-159, n. 16; instead, they either have required only that the defendant produce some evidence to rebut the inference suggested by the prosecution’s evidence, see Tot v. United States, 319 U. S. 463 (1943), or merely have been suggestions to the *170 jury that it would be sensible to draw certain conclusions on the basis of the evidence presented. 3 See Barnes v. United States, supra, at 840 n. 3. Evolving from our decisions, therefore, is a second standard for judging the constitutionality of criminal presumptions which is based — not on the constitutional requirement that the State be put to its proof — but rather on the due process rule that when the jury is encouraged to make factual inferences, those inferences must reflect some valid general observation about the natural connection between events as they occur in our society.

This due process rule was first articulated by the Court in Tot v. United States, supra, in which the Court reviewed the constitutionality of § 2 (f) of the Federal Firearms Act. That statute provided in part that “possession of a firearm or ammunition by any . . . person [who has been convicted of a crime of violence] shall be presumptive evidence that such firearm or ammunition was shipped or transported [in interstate or foreign commerce].” As the Court interpreted the presumption, it placed upon a defendant only the obligation of presenting some exculpatory evidence concerning the origins of a firearm or ammunition, once the Government proved that the defendant had possessed the weapon and had been convicted of a crime of violence. Noting that juries must be permitted to infer from one fact the existence of another essential to guilt, “if reason and experience support the inference,” 319 U. S., at 467 , the Court concluded that under some circumstances juries may be guided in making these inferences by legislative or common-law presumptions, even though they *171 may be based “upon a view of relation broader than that a jury might take in a specific case/’ id., at 468 . To provide due process, however, there must be at least a “rational connection between the fact proved and the ultimate fact presumed” — a connection grounded in “common experience.” Id., at 467-468 . In Tot , the Court found that connection to be lacking. 4

Subsequently, in Leary v. United States, 395 U. S. 6 (1969), the Court reaffirmed and refined the due process requirement of Tot that inferences specifically commended to the attention of jurors must reflect generally accepted connections between related events. At issue in Leary was the constitutionality of a federal statute making it a crime to receive, conceal, buy, or sell marihuana illegally brought into, the United States, knowing it to have been illegally imported. The statute provided that mere possession of marihuana “shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.” After reviewing the Court’s decisions in Tot v. United States, supra, and other criminal presumption cases, Mr. Justice Harlan, writing for the Court, concluded “that 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 on which it is made to depend.” 395 U. S., at 36 (footnote omitted). The Court invalidated the statute, finding there to be insufficient basis in fact for the conclusion that those who possess marihuana are more likely than not to know that it was imported illegally. 5

*172 Most recently, in Barnes v. United States, we considered the constitutionality of a quite different sort of presumption — one that suggested to the jury that “ ‘[possession of recently stolen property, if not satisfactorily explained, is ordinarily a circumstance from which you may reasonably draw the inference . . . that the person in possession knew the property had been stolen.’ ” 412 U. S., at 840 n. 3. After reviewing the various formulations used by the Court to articulate the constitutionally required basis for a criminal presumption, we once again found it unnecessary to choose among them. As for the presumption suggested to the jury in Barnes, we found that it was well founded in history, common sense, and experience, and therefore upheld it as being “clearly sufficient to enable the jury to find beyond a reasonable doubt” that those in the unexplained possession of recently stolen property know it to have been stolen. Id., at 845 .

In sum, our decisions uniformly have recognized that due process requires more than merely that the prosecution be put to its proof. 6 In addition, the Constitution restricts the court in its charge to the jury by requiring that, when particular factual inferences are recommended to the jury, those factual inferences be accurate reflections of what history, common sense, and experience tell us about the relations between events in our society. Generally, this due process rule has been articulated as requiring that the truth of the inferred fact be more likely than not whenever the premise for the inference is true. Thus, to be constitutional a presumption must be at least more likely than not true.

*173 II

In the present case, the jury was told:

“Our Penal Law also provides that the presence in an automobile of any machine gun or of any handgun or firearm which is loaded is presumptive evidence of their unlawful possession. In other words, [under] these presumptions or this latter presumption upon proof of the presence of the machine gun and the hand weapons, you may infer and draw a conclusion that such prohibited weapon was possessed by each of the defendants who occupied the automobile at the time when such instruments were found. The presumption or presumptions is effective only so long as there is no substantial evidence contradicting the conclusion flowing from the presumption, and the presumption is said to disappear when such contradictory evidence is adduced.”

Undeniably, the presumption charged in this case encouraged the jury to draw a particular factual inference regardless of any other evidence presented: to infer that respondents possessed the weapons found in the automobile “upon proof of the presence of the machine gun and the hand weapon” and proof that respondents “occupied the automobile at the time such instruments were found.” I believe that the presumption thus charged was unconstitutional because it did not fairly reflect what common sense and experience tell us about passengers in automobiles and the possession of handguns. People present in automobiles where there are weapons simply are not “more likely than not” the possessors of those weapons.

Under New York law, “to possess” is “to have physical possession or otherwise to exercise dominion or control over tangible property.” N. Y. Penal Law § 10.00 (8) (McKinney 1975). Plainly, the mere presence of an individual in an automobile — without more — does not indicate that he exercises “dominion or control over” everything within it. As the *174 Court of Appeals noted, there are countless situations in which individuals are invited as guests into vehicles the contents of which they know nothing about, much less have control over. Similarly, those who invite others into their automobile do not generally search them to determine what they may have on their person; nor do they insist that any handguns be identified and placed within reach of the occupants of the automobile. Indeed, handguns are particularly susceptible to concealment and therefore are less likely than are other objects to be observed by those in an automobile.

In another context, this Court has been particularly hesitant to infer possession from mere presence in a location, noting that “[p]resence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant’s function at the [illegal] still, its connection with possession is too tenuous to permit a reasonable inference of guilt — ‘the inference of the one from proof of the other is arbitrary . . . .’ Tot v. United States, 319 U. S. 463, 467 .” United States v. Romano, 382 U. S., at 141 . We should be even more hesitant to uphold the inference of possession of a handgun from mere presence in an automobile, in light of common experience concerning automobiles and handguns. Because the specific factual inference recommended to the jury in this case is not one that is supported by the general experience of our society. I cannot say that the presumption charged is “more likely than not” to be true. Accordingly, respondents’ due process rights were violated by the presumption’s use.

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 *175 as well. The Court suggests that this is the proper approach when reviewing what it calls “permissive” presumptions because the jury was urged “to consider all the circumstances tending to support or contradict the inference.” Ante, at 162.

It seems to me that the Court mischaracterizes the function of the presumption charged in this case. As it acknowledges was the case in Romano, supra, the “instruction authorized conviction even if the jury disbelieved all of the testimony except the proof of presence” in the automobile. 7 Ante, at 159 n. 16. The Court nevertheless relies on all of the evidence introduced by the prosecution and argues that the “permissive” presumption could not have prejudiced defendants. The possibility that the jury disbelieved all of this evidence, and relied on the presumption, is simply ignored.

I agree that the circumstances relied upon by the Court in determining the plausibility of the presumption charged in this case would have made it reasonable for the jury to “infer that each of the respondents was fully aware of the presence of the guns and had both the ability and the intent to exercise dominion and control over the weapons.” But the jury was told that it could conclude that respondents possessed the weapons found therein from proof of the mere fact of respondents’ presence in the automobile. For all we know, the jury rejected all of the prosecution’s evidence *176 concerning the location and origin of the guns, and based its conclusion that respondents possessed the weapons solely upon its belief that respondents had been present in the automobile. 8 For purposes of reviewing the constitutionality of the presumption at issue here, we must assume that this was the case. See Bollenbach v. United States, 326 U. S. 607, 613 (1946); cf. Leary v. United States, 395 U. S., at 31 .

The Court’s novel approach in this case appears to contradict prior decisions of this Court reviewing such presumptions. 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. Quite the contrary, the Court has required that the “evidence necessary to invoke the inference [be] sufficient for a rational juror to find the inferred fact . . . .” Barnes v. United States, 412 U. S., at 843 (emphasis supplied). See Turner v. United States, 396 U. S. 398, 407 (1970). Under the presumption charged in this case, the only evidence necessary to invoke the inference was the presence of the weapons in the automobile with respondents — an inference that is plainly irrational.

*177 In sum, it seems to me that the Court today ignores the teaching of our prior decisions. By speculating about what the jury may have done with the factual inference thrust upon it, the Court in effect assumes away the inference altogether, constructing a rule that permits the use of any inference — no matter how irrational in itself — provided that otherwise there is sufficient evidence in the record to support a finding of guilt. Applying this novel analysis to the present case, the Court upholds the use of a presumption that it makes no effort to defend in isolation. In substance, the Court— applying an unarticulated harmless-error standard — simply finds that the respondents were guilty as charged. They may well have been, but rather than acknowledging this rationale, the Court seems to have made new law with respect to presumptions that could seriously jeopardize a defendant’s right to a fair trial. Accordingly, I dissent.

Such encouragement can be provided either by statutory presumptions, see, e. g., 18 U. S. C. § 1201 (b), or by presumptions created in the common law. See, e. g., Barnes v. United States, 412 U. S. 837 (1973). Unless otherwise specified, “presumption” will be used herein to refer to “permissible inferences,” as well as to “true” presumptions. See F. James, Civil Procedure §7.9 (1965).

The Court suggests that presumptions that shift the burden of persuasion to the defendant in this way can be upheld provided that “the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.” Ante, at 167. As the present case involves no shifting of the burden of persuasion, the constitutional restrictions on such presumptions are not before us, and I express no views on them.

It may well be that even those presumptions that do not shift the burden of persuasion cannot be used to prove an element of the offense, if the facts proved would not permit a reasonable mind to find the presumed fact beyond a reasonable doubt. My conclusion in Part II, infra, makes it unnecessary for me to address this concern here.

The Court suggests as the touchstone for its analysis a distinction between “mandatory” and “permissive” presumptions. See ante, at 157. For general discussions of the various forms of presumptions, see Jeffries & Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 Yale L. J. 1325 (1979); F. James, Civil Procedure §7.9 (1965). I have found no recognition in the Court’s prior decisions that this distinction, is important in analyzing presumptions used in criminal cases. Cf. ibid, (distinguishing true “presumptions” from “permissible inferences”).

The analysis of Tot v. United States was used by the Court in United States v. Gainey, 380 U. S. 63 (1965), and United States v. Romano, 382 U. S. 136 (1965).

Because the statute in Leary v. United States was found to be unconstitutional under the “more likely than not” standard, the Court explicitly declined to consider whether criminal presumptions also must follow *172 “beyond a reasonable doubt” from their premises, if an essential element of the crime depends upon the presumption’s use. 395 U. S., at 36 n. 64. See n. 2, supra. The Court similarly avoided this question in Turner v. United States, 396 U. S. 398, 416 (1970).

The Court apparently disagrees, contending that “the factfinder’s responsibility ... to find the ultimate facts beyond a reasonable doubt” is the only constitutional restraint upon the use of criminal presumptions at trial. See ante, at 156.

In commending the presumption to the jury, the court gave no instrue-, tion that would have required a finding of possession to be based on anything more than mere presence in the automobile. Thus, the jury was not instructed that it should infer that respondents possessed the handguns only if it found that the guns were too large to be concealed in Jane Doe’s handbag, ante, at 163; that the guns accordingly were in the plain view of respondents, ibid; that the weapons were within “easy access of the driver of the car and even, perhaps, of the other two respondents who were riding in the rear seat,” ibid.; that it was unlikely that Jane Doe was solely responsible for the placement of the weapons in her purse, ibid.; or that the case was “tantamount to one in which the guns were lying on the floor or the seat of the ear in the plain view of the three other occupants of the automobile.” Ante, at 164.

The Court is therefore mistaken in its conclusion that, because “respondents were not 'hitchhikers or other casual passengers,’ and the guns were neither ‘a few inches in length’ nor 'out of [respondents’] sight,”’ reference to these possibilities is inappropriate in considering the constitutionality of the presumption as charged in this case. Ante, at 163. To be sure, respondents’ challenge is to the presumption as charged to the jury in this case. But in assessing its application here, we are not free, as the Court apparently believes, to disregard the possibility that the jury may have disbelieved all other evidence supporting an inference of possession. The jury may have concluded that respondents — like hitchhikers — had only an incidental relationship to the auto in which they were traveling, or that, contrary to some of the testimony at trial, the weapons were indeed out of respondents' sight.