Alaska R. Evid. 303 commentary

(a) Effect. This rule governs rebuttable presumptions

generally in criminal cases. Rule 301 governs in civil cases and

Rule 302 governs presumptions controlled by federal law, although it is unlikely to have any impact in criminal cases.

The word “presumption” is used in this Rule in the same manner as in Rule 301. The

Reporter’s

Comment

accompanying Rule 301 explains this use in detail. As was the

case with presumptions operating in civil cases, the legislature

sometimes creates “presumptions” without using the word

“presumption.” For example, the legislature may employ the

term “prima facie evidence,” which is covered by subdivision

(b). See, e.g., AS 11.20.220 (Evidence of knowledge of

insufficient funds); AS 11.20.250 (Evidence of intent to de-

fraud), quoted in Selman v. State, 411 P.2d 217 (Alaska 1966).

The Advisory Committee on the Federal Rules expressed its

opinion that “[i]t is axiomatic that a verdict cannot be directed

against the accused in a criminal case0.0.0.0.0with the

corollary that the judge is without authority to direct the jury to

find against the accused as to any element of the crime…

Although arguably the judge could direct the jury to find

against the accused as to a lesser fact, the tradition is against

it…” Without making any constitutional decisions, Rule 203(c)

accepted this opinion as expressing sound policy and denied

judges the power to bind juries to facts believed by the judges

to be beyond reasonable dispute. The instant rule is in accord.

A presumption cannot be used against a defendant as a device

to preempt the jury’s function of finding facts and assessing

guilt and innocence.

When a presumption is directed against the government,

different policies govern, and a presumption may result in a

directed verdict or peremptory instruction in favor of a

defendant. Presumptions working against the government are

treated like civil presumptions under Rule 301 and will not be

discussed in this Comment.

If a presumption cannot be binding on a defendant, what is

its utility? Judge Weinstein identifies a two-fold function:

Presumptions are utilized to overcome two separate

problems in federal law. Primarily this function is to lessen

the prosecution’s burden of establishing guilt by authorizing

short-cuts in proof and exerting pressure on the person with

the most knowledge to come forward with an explanation.

0.0.0.

In addition, a presumption may serve the secondary

function of making undesirable activities amenable to

federal jurisdiction.

1 Weinstein’s Evidence, Paragraph 303 [01] (1975). The

second function is of no concern to the states in their lawmak-

ing activities. But a third function may be important. “In a

borderline case a judge may be influenced by the legislative

judgment of Congress [or a state legislature] to submit a basic

fact to a jury which he would not have submitted as merely

circumstantial evidence of the presumed fact.” Id. Thus, the

first and third functions are the important ones for the states.

There also may be a fourth function — to make clear the intent

of the legislature in special circumstances.

Subdivision (a) allows presumptions to perform their

intended functions, but prevents them from exerting too great

an impact on the outcome of a case. If a presumption is created

by the legislature or the courts, it serves as an incentive for the

accused to submit rebuttal evidence. If no rebuttal evidence or

insufficient evidence is offered, the court, without using the

word “presumption,” will instruct the jury that it may, but is

not bound to, infer the existence of the presumed fact from

proof of the basic fact. Such an instruction is couched purely in

terms of a permissible inference; no attempt is made to guide

the jury in assessing the sufficiency of the inference to prove

guilt. This mandatory instruction is in the nature of a mild

comment on the evidence. No good reason appears why the

legislature or the courts cannot require a specific non-binding

instruction when they deem it desirable.

If the accused offers evidence to rebut or meet the

presumption, the giving of an instruction is discretionary. In

instances where the nature of a presumption directed against

the accused is such that the relationship between the proved

fact and the presumed fact is self-evident or apparent, no

instruction should normally be given by the court if the

accused offers evidence to rebut or meet the presumption,

since in such instances, a jury instruction would tend to

emphasize unduly and unnecessarily the existence of the

presumption. On the other hand, in circumstances where there

is no obvious connection between the proved fact and the

presumed fact, an instruction to the jury regarding the

existence of the presumption would ordinarily be appropriate.

A good example of this latter situation would be the

standard case involving the presumption created by a

Breathalyzer examination. The proved fact in such a case

would be a Breathalyzer reading of .10 percent blood alcohol

or greater; the fact to be presumed from the proved fact is that

the accused was under the influence of intoxicating liquor at

the time of the test. Under normal circumstances, with no

expert testimony concerning the significance of .10 percent

blood alcohol level in terms of its effect on an individual’s

sobriety, the mere awareness of the proved fact—i.e., the .10

percent blood alcohol level—would be meaningless to the

average juror. Assuming the accused in such a situation was

willing to concede the blood alcohol level, but opted to rebut

the presumption by arguing that, despite the blood alcohol

level, he was not in fact impaired, the mere establishment of

blood alcohol level by the prosecution would be rendered

wholly ineffective in the absence of a specific instruction to the

jury concerning the presumption which arises from proof of a

blood alcohol level of .10 percent or greater. It should be noted

that the burden of coming forward is less onerous here than in

Rule 301. This reflects a judgment that the defendant should

have the benefit of reasonable doubts.

One advantage of the approach taken in this Rule is that it

probably avoids the problem of applying to most presumptions

the confusing test of constitutionality compelled by the

following decisions of the United States Supreme Court: Tot v.

United States, 319 U.S. 463, 87 L.Ed. 1519 (1943), United

States v. Gainey, 380 U.S. 63, 13 L.Ed.2d 658 (1965), United

States v. Romano, 382 U.S. 136, 15 L.Ed.2d 210 (1965), Leary

v. United States, 395 U.S. 6, 23 L.Ed.2d 57 (1969), Turner v.

United States, 396 U.S. 398, 24 L.Ed.2d 610 (1970), and

Barnes v. United States, 412 U.S. 837, 37 L.Ed.2d 380 (1973).

As long as a court confines itself to a description of a

permissible inference, avoiding a statement like the trial

judge’s in Barnes—”[i]f you should find beyond a reasonable

doubt…that the mail…was stolen,…you would ordinarily be

justified in drawing the inference…unless such possession is

explained…”0(emphasis added)— and avoiding the legislative

language in Leary employed by the court in its instruction—

”[w]henever…the defendant is shown to have or to have had

the marihuana in his possession, such possession shall be

deemed sufficient evidence to authorize conviction unless the

defendant explains…” (emphasis added)—the relatively mild

comment in the form of an instruction commanded by this

Rule is likely to be sustained in light of the traditional power of

federal courts to comment on the weight of the evidence in

criminal cases and the nature of the instruction.

Another advantage of the rule is that it avoids the

complications of the proposed Federal Rules. They caused the

eminent jurist, Henry Friendly, to complain to the Congress

that he did not understand them. See Hearings on Proposed

Rules of Evidence Before the Subcomm. on Crim. Justice of

the House Comm. on the Judiciary, 93rd Cong., 1st Sess., at

249 (1973). This is not surprising, since many lawyers would

have the same difficulty.

A final advantage is that by creating presumptions that are

covered by this rule, the legislature makes the same

“statement” to courts about desired treatment of borderline

cases as it makes with more powerful presumptions.

The legislature and the courts remain free under Rule 303 to

create presumptions with a different effect than that provided

here. For example. AS 41.15.110(c) (Allowing fire to escape or

failure to make effort to extinguish; misdemeanor) provides

that “[i]n a criminal action brought under this section, the

escape of the fire is presumptive evidence of negligence by the

person responsible for starting the fire and unless rebutted is

sufficient to sustain a conviction.” While this statute avoids

any implicit reference to silence on the part of the defendant

and thus is less worrisome than some instructions approved by

other courts, see, e.g., United States v. Gainey, supra, application of the statute may be challenged more readily under the

line of United States Supreme Court cases previously cited

than under this rule.

(b) Prima Facie Evidence. See the Reporter’s Comment

accompanying Rule 301 (b).

(c) Inconsistent Presumptions. The reason for this

subdivision is set forth in the Reporter’s Comment

accompanying Rule 301 (c). There is one important difference,

however, between the instant rule and Rule 301 (c): Under the

instant rule the effect of the preponderant presumption will

vary, depending on whether it favors the government or the

accused; no such variance occurs under Rule 301 (c).

This rule does not establish that the government must

always bear the burden of persuasion on every issue litigated in

a criminal case. Whether an accused sometimes may be

compelled to bear the burden of persuasion is beyond the scope

of these Rules of Evidence. See generally Mullaney v. Wilbur,

421 U.S. 684, 44 L.Ed.2d 508 (1975); Patterson v. New York,

432 U.S. 197, 53 L.Ed.2d 281 (1977). The language of the

Rule assumes, however, that in most instances when the

government seeks the benefits of a presumption it bears the

burden of persuasion.

Nothing in this rule eliminates the instruction that a

defendant is presumed to be innocent. This presumption is not

an evidence presumption, but a special casting of the burden

placed on the government to prove guilt beyond a reasonable

doubt.

ARTICLE IV. ADMISSIBILITY OF

RELEVANT EVIDENCE