Rule 306  Presumptions in criminal
proceedings.  (a) Presumptions against the accused.



(1)  Scope.  Except as otherwise provided by statute,
in criminal proceedings, presumptions against an accused, recognized at common
law or created by statute, including statutory provisions that certain facts
are prima facie evidence of other facts or of guilt, are governed by this
subsection.



(2)  Submission to jury.  When a presumed fact
establishes an element of the offense or negatives a defense, the court may
submit the presumption to the jury only if a reasonable juror on the evidence
as a whole, including the evidence of the basic facts, could find the presumed
fact beyond a reasonable doubt.



(3)  Instructing the jury.  The court may not direct
the jury to find a presumed fact against the accused.  Whenever a presumption
against the accused is submitted to the jury, the court shall instruct the jury
that, if it finds the basic facts beyond a reasonable doubt, it may infer the
presumed fact but is not required to do so.  In addition, if the presumed fact
establishes an element of the offense or negatives a defense, the court shall
instruct the jury that its existence, on all the evidence, must be proved
beyond a reasonable doubt.



(b)  Presumptions against the State.  Except as
otherwise provided by statute, in criminal proceedings, presumptions against
the State, recognized at common law or created by statute, impose on the State
either (1) the burden of producing evidence, or (2) the burden of proof.



(c)  Inconsistent presumptions.  If two
presumptions are mutually inconsistent, the presumption applies that is founded
upon weightier considerations of policy and logic.  If considerations of policy
and logic are of equal weight, neither presumption applies. [L 1980, c 164, pt
of §1]



 



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 H. 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.



 



Case Notes



 



  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 H. 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.