(a) Scope. This section governs the operation of inferences, prima facie evidence, and presumptions in criminal cases.
(b) Inferences. The jury generally may draw inferences in a criminal case in the same manner as in a civil case.
(c) Prima Facie Evidence. Prima facie evidence means that proof of the first fact permits, but does not require, the fact finder, in the absence of competing evidence, to find that the second fact is true beyond a reasonable doubt. Where there is contrary evidence, the first fact continues to constitute some evidence of the fact to be proved, remaining throughout the trial probative on issues to which it is relevant.
(d) Presumptions. The term “presumption” should not be used in connection with the Commonwealth’s burden of proof.
(1) The defendant cannot be required to satisfy the burden of disproving a fact that is essential to a finding or verdict of guilty.
(2) The defendant may be required to satisfy a burden of production.
Subsection (a). Constitutional principles restrict the manner in which concepts such as inferences, prima facie evidence, and presumptions are permitted to operate in criminal cases. “[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). “[I]t is constitutionally impermissible to shift to a defendant the burden of disproving an element of a crime charged.” Commonwealth v. Moreira, 385 Mass. 792, 794, 434 N.E.2d 196, 198 (1982). Likewise, “[d]ue process requires that the State disprove beyond a reasonable doubt those ‘defenses’ that negate essential elements of the crime charged.” Commonwealth v. Robinson, 382 Mass. 189, 203, 415 N.E.2d 805, 814 (1981). Therefore, a conclusive or mandatory presumption or inference in any form which has the effect of relieving the jury of the duty of finding a fact essential to proof of the defendant’s guilt on a criminal charge beyond a reasonable doubt based on evidence offered at trial, or which imposes on a defendant a burden of persuasion as to such a fact, conflicts with the presumption of innocence and violates due process. See Sandstrom v. Montana, 442 U.S. 510, 523–524 (1979); Patterson v. New York, 432 U.S. 197, 210 (1977); Commonwealth v. Stokes, 374 Mass. 583, 589–590, 374 N.E.2d 87, 92 (1978).
Subsection (b). This subsection is derived from DeJoinville v. Commonwealth, 381 Mass. 246, 253, 408 N.E.2d 1353, 1357 (1980), and Gagne v. Commonwealth, 375 Mass. 417, 422–423, 377 N.E.2d 919, 922–923 (1978). While a jury generally may draw inferences in a criminal case in the same manner as in a civil case, drawing an inference in a criminal case is not a substitute for the separate determination of whether the defendant’s guilt has been established beyond a reasonable doubt. See Commonwealth v. Waite, 422 Mass. 792, 805–806, 665 N.E.2d 982, 991–992 (1996); Commonwealth v. Little, 384 Mass. 262, 267, 424 N.E.2d 504, 507 (1981).
Cross-Reference: Section 301(b), Civil Cases: Inferences.
Subsection (c). This subsection is derived from Commonwealth v. Maloney, 447 Mass. 577, 581, 855 N.E.2d 765, 769 (2006). See also Commonwealth v. Chappee, 397 Mass. 508, 520, 492 N.E.2d 719, 726 (1986); Commonwealth v. Pauley, 368 Mass. 286, 291–292, 331 N.E.2d 901, 904–905 (1975).
There are numerous statutes that designate certain evidence as having prima facie effect. See, e.g., G. L. c. 22C, § 39, and G. L. c. 111, § 13 (certificate of chemical analysis of narcotics); G. L. c. 46, § 19 (birth, marriage, or death certificate); G. L. c. 90, § 24(4) (court record of a prior conviction if accompanied by other documentation); G. L. c. 185C, § 21 (report of inspector in housing court); G. L. c. 233, § 79F (certificate of public way); G. L. c. 269, § 11C (firearm with obliterated serial number).
“Such provisions serve to identify evidence that the Commonwealth may introduce to meet its burden and which, while just as probative as other evidence, is less burdensome to produce. They do not, however, alter the Commonwealth’s substantive burden of proof, render admissible any evidence that previously was inadmissible, or render sufficient any evidence that necessarily was insufficient beforehand.” (Citation omitted.)
Commonwealth v. Maloney, 447 Mass. at 581–582, 855 N.E.2d at 769.
Subsection (d). This subsection is derived from Commonwealth v. Moreira, 385 Mass. 792, 797, 434 N.E.2d 196, 200 (1982), where the Supreme Judicial Court stated that “[t]he word ‘presumption’ must be given an explanation consistent with the meaning of inference. The safer course, perhaps, is to avoid the use of the word ‘presumption,’ in any context which includes the burden of proof in criminal cases.” See also Commonwealth v. McInerney, 373 Mass. 136, 149, 365 N.E.2d 815, 823 (1977) (explaining the problems that arise when the terms “presumption” and “inference” are used interchangeably). Additionally, in instructing a jury, the judge should explain that inferences operate only permissively, and that the jury are not required to accept any fact based on prima facie evidence. See Commonwealth v. Niziolek, 380 Mass. 513, 521–522, 404 N.E.2d 643, 648 (1980); Commonwealth v. Pauley, 368 Mass. 286, 291–292, 331 N.E.2d 901, 904–905 (1975). See also Commonwealth v. Corriveau, 396 Mass. 319, 340, 486 N.E.2d 29, 43 (1985).
Subsection (d)(1). This subsection is derived from Commonwealth v. Moreira, 385 Mass. 792, 794–797, 434 N.E.2d 196, 198–200 (1982), and Commonwealth v. McDuffee, 379 Mass. 353, 363–364, 398 N.E.2d 463, 469 (1979). See also In re Winship, 397 U.S. 358, 364 (1970) (“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”).
Subsection (d)(2). This subsection is derived from Commonwealth v. Cabral, 443 Mass. 171, 179, 819 N.E.2d 951, 959 (2005), and cases cited. See id. (“[W]here a defendant asserts an affirmative defense, he takes on a burden of production, because the Commonwealth has no burden of disproving an affirmative defense unless and until there is evidence supporting such defense” [citation and quotation omitted].). This principle is illustrated by Commonwealth v. Vives, 447 Mass. 537, 541, 854 N.E.2d 1241, 1244 (2006), where the court explained that
“[t]he Commonwealth’s burden to disprove the affirmative defense of honest and reasonable claim arises once the defendant has met his own burden of production. Thus, if any view of the evidence would support a factual finding that the defendant was acting as creditor to the victim’s debtor, the defendant has met his burden of production and it is incumbent on the Commonwealth to disprove the defense.” (Citation and quotation omitted.)
In Commonwealth v. Vives, 447 Mass. at 541 n.3, 854 N.E.2d at 1244 n.3, the court also made it clear that a defendant may be required to carry the burden of production as to an affirmative defense that relates directly to an element of the crime. See, e.g., Commonwealth v. Rodriguez, 370 Mass. 684, 687–688, 352 N.E.2d 203, 205–206 (1976) (in prosecution for assault and battery, Commonwealth has no duty to affirmatively disprove that the defendant acted in self-defense until there is some evidence in the case to warrant such a finding). Cf. Commonwealth v. McLaughlin, 431 Mass. 506, 524–526, 729 N.E.2d 252, 266–268 (2000) (Spina, J., concurring) (discussing the idiosyncratic use of the concept of “presumption” in insanity cases in Massachusetts and explaining that the “presumption of sanity” survives even when the defendant offers evidence that he or she was insane at the time of the commission of the crime because insanity is not an element of the offense). See also Model Jury Instructions for Use in the District Court § 3.07 (Mass. Cont. Legal Educ. 2003).
In a prosecution of a firearm charge, the defendant must give the Commonwealth notice that he or she intends to raise the defense of license and produce “some evidence” of a license, at which time the burden shifts to the Commonwealth to prove the absence of a license beyond a reasonable doubt. Commonwealth v. Gouse, 461 Mass. 787, 806, 965 N.E.2d 774, 789–790 (2012). However, when the charge results from alleged illegal possession of a firearm by a coventurer, the defendant must give notice of the defense but is not required to produce any evidence of the existence of the codefendant’s firearm license, as he or she has no better access to that information than the Commonwealth. Commonwealth v. Humphries, 465 Mass. 762, 771, 991 N.E.2d 652, 660–661 (2013).