white magic, they will dematerialize. But like the sorcerer’s mystical power, misapplied presumptions become black magic for the State. This article reviews the applicable law of statutory presumptions and four exemplar jury instructions, three of which have been in general use for some time. The other example is from the recently published 2015 softcover Texas Criminal Pattern Jury Charges - General, Evidentiary and Ancillary Instructions (“the State Bar’s pattern jury charges”). When a case contains exculpatory evidence contradicting a statutory presumption’s invited inference, all four jury charge examples unconstitutionally increase the odds of a wrongful conviction. A simple remedial instruction, the magic words, resolves the problem. PRESUMPTIONS AND THEIR DANGER A presumption is a rule of evidence, supplying “an inference as to the existence of a fact not actually known, arising from its usual connection with another which is known.” Insurance Co. v. Weide, 78 U.S. 438, 441-442 (1870). A presumption is not evidence, nor does it supply evidence. Guzman v. State, 188 S.W.3d 185, 193 (Tex. Crim. App. 2006). Instead, it is a deduction from the circumstances of a case.
Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983). See State v. Litzau, 650 N.W.2d 177, 186 (Minn. 2002) (“a particular step of logic”) and Commonwealth v. MacPherson, 752 A.2d 384, 389 (Pa. 2000) (“an evidentiary tool that enables the factfinder to proceed by inferential reasoning from one fact to another”). It is a device guaranteeing the trier of fact will consider a specific inference from among the universe of possible inferences arising from the same proven facts. Presumptions are problematic because they are judicial comments on the weight of the evidence. See Brown v. State, 122 S.W.3d 794, (Tex. Crim. App. 2003). Texas judges “are forbidden from instructing the jury on any presumption . . . that does not have a statutory basis.” Id. at 799, construing Tex. Code Crim. Proc. Ann. art. 38.04. Presumptions blur the line between judge and jury and can alter the judge’s role as a neutral arbiter between the advocates and an instructor in the law for the jury, and instead involve the court “in the fray.” Id. at 798, citing Lagrone v. State, 209 S.W. 411, 415 (Tex. Crim. App. 1919). Judge Cochran delivered the Brown opinion and was the liaison between
liquors, they should return a verdict of “not guilty.” DiFrancesco at 207-208, 211. A subsequent unanimous Pennsylvania Supreme Court in 2000 with seven altogether different individual justices specifically endorses DiFrancesco’s suggested jury charge. MacPherson at 392. A Tenth Circuit panel also addresses a claim of improper jury instructions for a permissive presumption in United States v. Cota-Meza, 367 F.3d 1218, 1222-1223 (10th Cir. 2004), noting a “better instruction would have stressed that the jury was permitted to draw the inference only if in light of all of the other evidence, [the predicate facts] convinced the jury beyond a reasonable doubt [of the presumed elemental fact].” In 2013, a different Tenth Circuit three judge appellate court cites Morissette and “reiterated” their agreement with the exact same instruction suggested by their colleagues in Cota-Meza. Berry at 832. These four opinions together with Morissette span 61 years of jurisprudential thinking. All twenty-seven of these distinguished jurists