The criminal laws and the institutions charged with the administration of those laws are now the subjects of extensive study. The federal government' and various states are in the process of revising their criminal codes. The purpose of this article is to discuss what kind of presumptions should be enacted by a legislative body." The term presumption has been used in several ways. I use the word (hereinafter in italics) as a collective term to embrace situations in which a legislative body declares that proof of certain facts (the basic fact) has an effect in establishing other facts (the presumed fact which is the alleged crime or an element of the alleged crime). In Part II of this article I shall consider situations in which I believe presumptions are improperly used--that is, when they are employed to accomplish substantive results which could be achieved through enactment of ordinary statutes. I shall also discuss cases in which a presumption concept is employed unnecessarily--that is, when it is used to allocate the burden of coming forward to a defendant on a particular issue when the proof allocation could be made directly without the benefit of a "presumption."
In Part III, I shall analyze the test used to determine the constitutionality of a presumption--the rational connection standard. Here, I offer an interpretation of the standard that places substantial,but fair, limits on the Congress in this area. In Part IV, I recommend adoption of two varieties of presumptions: a natural inference presumption and an empirical data presumption. The former involves only the designation of the basic facts that establish a prima facie case. An empirical data presumption has two consequences: (1) submission of the case to the jury unless the evidence as a whole clearly precludes a finding of the presumed fact beyond a reasonable doubt, and (2) a required instruction to the jury of the probative value of the basic facts. The subject of this article is the federal criminal law, and, therefore, the discussion is concerned with congressional action. However, I believe my conclusions apply equally to state criminal codes.
Gerald H. Abrams,
Statutory Presumptions and the Federal Criminal Law: A Suggested Analysis,
22 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol22/iss5/5