Guide to Evidence Article III: Inferences, prima facie evidence, and presumptions
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Section 301. Civil cases
This section applies to all civil actions and proceedings, except as otherwise specifically provided by a statute, the common law, a rule, or a regulation.
An inference is a step in reasoning that the fact finder may make from evidence that has been accepted as believable. A fact may be inferred even though the relationship between the basic fact and the inferred fact is not necessary or inescapable, so long as it is reasonable and possible.
(c) Prima Facie Evidence
Where a statute or regulation provides that a fact or group of facts is prima facie evidence of another fact at issue, the party against whom the prima facie evidence is directed has the burden of production to rebut or meet such prima facie evidence. If that party fails to come forward with evidence to rebut or meet the prima facie evidence, the fact at issue is to be taken by the fact finder as established. Where evidence is introduced sufficient to warrant a finding contrary to the fact at issue, the fact finder is permitted to consider the prima facie evidence as bearing on the fact at issue, but it must be weighed with all other evidence to determine whether a particular fact has been proved. Prima facie evidence does not shift the burden of persuasion, which remains throughout the trial on the party on whom it was originally cast.
A presumption imposes on the party against whom it is directed the burden of production to rebut or meet that presumption. The extent of that burden may be defined by statute, regulation, or the common law. If that party fails to come forward with evidence to rebut or meet that presumption, the fact is to be taken by the fact finder as established. If that party comes forward with evidence to rebut or meet the presumption, the presumption shall have no further force or effect. A presumption does not shift the burden of persuasion, which remains throughout the trial on the party on whom it was originally cast.
Subsection (b). This subsection is derived from Commonwealth v. Dinkins , 440 Mass. 715, 720–721 & n.8 (2004), and DeJoinville v. Commonwealth , 381 Mass. 246, 253 n.13 (1980). “In this formulation, ‘possible’ is not a lesser alternative to ‘reasonable.’ Rather, the two words function in a synergistic manner: each raises the standard imposed by the other.” Commonwealth v. Dinkins, 440 Mass. at 721. “[W]e have permitted, in carefully defined circumstances, a jury to make an inference based on an inference to come to a conclusion of guilt or innocence. But we require that each inference must be a reasonable and logical conclusion from the prior inference; we have made clear that a jury may not use conjecture or guesswork to choose between alternative inferences.” Commonwealth v. Dostie , 425 Mass. 372, 376 (1997). See, e.g., Commonwealth v. White , 452 Mass. 133, 136 (2008) (concluding that there was sufficient evidence connecting the defendant to a gun found at the crime scene, the court observed that “[w]e do not require that every inference be premised on an independently proven fact”). For a lengthy list of inferences, see W.G. Young, J.R. Pollets, & C. Poreda, Annotated Guide to Massachusetts Evidence § 301 (2017–2018 ed.). See also Model Jury Instructions for Use in the District Court § 3.03 (Mass. Cont. Legal Educ. 2003).
Subsection (c). This subsection is derived from Burns v. Commonwealth , 430 Mass. 444, 450–451 (1999); Ford Motor Co. v. Barrett , 403 Mass. 240, 242–243 (1988); and Cook v. Farm Serv. Stores, Inc. , 301 Mass. 564, 566 (1938). For a list of statutes that involve prima facie evidence, see W.G. Young, J.R. Pollets, & C. Poreda, Annotated Guide to Massachusetts Evidence § 301 (2017–2018 ed.). See also Model Jury Instructions for Use in the District Court § 3.03 (Mass. Cont. Legal Educ. 2003).
Subsection (d). This subsection is based on the predominant approach in Massachusetts whereby a presumption shifts the burden of production and disappears when the opposing party meets its burden by offering evidence to rebut the presumption. However, the disappearance of the presumption does not prevent the fact finder from drawing an inference from one or more basic facts that is consistent with the original presumption. See Standerwick v. Zoning Bd. of Appeals of Andover , 447 Mass. 20, 34–35 (2006), quoting Epstein v. Boston Hous. Auth. , 317 Mass. 297, 302 (1944) (in the context of the statutory provision that an abutter is presumed to have standing in cases arising under G. L. c. 40A, the court observed that “[a] presumption does not shift the burden of proof; it is a rule of evidence that aids the party bearing the burden of proof in sustaining that burden by ‘throw[ing] upon his adversary the burden of going forward with evidence.’”); Jacobs v. Town Clerk of Arlington , 402 Mass. 824, 826–827 (1988) (rebuttable presumption of death). The quantum of evidence required to rebut the presumption may vary. See Yazbek v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds , 41 Mass. App. Ct. 915, 916 (1996).
In civil cases, presumptions ordinarily require a party against whom the presumption is directed to come forward with some evidence to rebut the presumption; they ordinarily impose a burden of production, not persuasion, on that party. What has been termed an irrebuttable or conclusive presumption is not a rule of evidence, but rather a rule of substantive law designed to address a social policy, and cannot be rebutted by evidence. W.G. Young, J.R. Pollets, & C. Poreda, Annotated Guide to Massachusetts Evidence § 301(e) (2017–2018 ed.), citing Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Ct. Dep’t , 439 Mass. 352, 354–356 (2003), and Commonwealth v. Dunne , 394 Mass. 10, 18 (1985). See G. L. c.152, § 32(e) ; Carey’s Case , 66 Mass. App. Ct. 749, 755–758 (2006).
A presumption may give rise to a constitutional question even in civil cases. See, e.g., Care & Protection of Erin , 443 Mass. 567, 571 (2005) (“[I]n cases that involve severing parental rights, the presumption that a child, who had been in the care of the department for more than one year, would have her best interests served by granting a petition for adoption or dispensing with the need for parental consent to adoption, violates the parents’ due process rights because it shifts the burden to the parent affirmatively to prove fitness and to prove that the best interests of the child would be served by maintaining parental rights.”). For presumptions governing child custody cases, see G. L. c. 208, §§ 31 and 31A ; G.L. c. 209, § 38 ; G. L. c. 209A ; and G. L. c. 209C, §§ 6 and 10(b) . See also Custody of Kali , 439 Mass. 834, 844 (2003) (“The required considerations of G. L. c. 209C, § 10[a] . . . do [not] create a presumption that the caretaker with whom the child is primarily residing will be awarded permanent custody.”); Della Corte v. Ramirez , 81 Mass. App. Ct. 906, 907 (2012) (presumption of parentage applies to child of same-sex couple who were married at time of child’s birth). For a further list of presumptions, see W.G. Young, J.R. Pollets, & C. Poreda, Annotated Guide to Massachusetts Evidence § 301 (2017–2018 ed.). See also Model Jury Instructions for Use in the District Court § 3.07 (Mass. Cont. Legal Educ. 2003).
Section 302. Criminal cases
This section governs the operation of inferences, prima facie evidence, and presumptions in criminal cases.
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.
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 (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 (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 (1978). Further, “[a] permissive inference cannot have the effect of reducing the Commonwealth’s burden to prove a crime beyond a reasonable doubt.” Commonwealth v. Littles, 477 Mass. 382, 388 (2017).
Subsection (b). This subsection is derived from DeJoinville v. Commonwealth , 381 Mass. 246, 253 (1980), and Gagne v. Commonwealth , 375 Mass. 417, 422–423 (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 (1996); Commonwealth v. Little , 384 Mass. 262, 267 (1981).
Cross-Reference: Section 301(b), Civil Cases: Inferences.
Subsection (c). This subsection is derived from Commonwealth v. Maloney , 447 Mass. 577, 581 (2006). See also Commonwealth v. Chappee , 397 Mass. 508, 520 (1986); Commonwealth v. Pauley , 368 Mass. 286, 291–292 (1975).
There are numerous statutes that designate certain evidence as having prima facie effect. See, e.g., G. L. c. 22C, § 39(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. Such statutes may be unconstitutional unless there is a “strong, logical connection” between the basic fact and the inferred fact. Commonwealth v. Littles, 477 Mass. 382, 385–386 (2017) (failure to make good on dishonored check within two days cannot be prima facie evidence of intent to defraud).
Subsection (d). This subsection is derived from Commonwealth v. Moreira , 385 Mass. 792, 797 (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 (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 (1980); Commonwealth v. Pauley , 368 Mass. 286, 291–292 (1975). See also Commonwealth v. Corriveau , 396 Mass. 319, 340 (1985).
Subsection (d)(1). This subsection is derived from Commonwealth v. Moreira , 385 Mass. 792, 794–797 (1982), and Commonwealth v. McDuffee , 379 Mass. 353, 363–364 (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 (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 (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.)
The evidence supporting an affirmative defense “may be contained in the Commonwealth’s case, the defendant’s case, or the two in combination.” Commonwealth v. Galvin , 56 Mass. App. Ct. 698, 699 (2002), citing Commonwealth v. Rodriguez , 370 Mass. 684, 688 n.5 (1976). In determining whether sufficient evidence supports an affirmative defense, the evidence must be viewed in the light most favorable to the defendant. Id.
In Commonwealth v. Vives, 447 Mass. at 541 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. Commonwealth v. Dorvil , 472 Mass. 1, 13 (2015) (where there is some evidence that a parent used reasonable force in disciplining a minor child, the Commonwealth bears the burden of disproving at least one prong of the parental privilege), citing Commonwealth v. Glacken , 451 Mass. 163, 167 (2008). See, e.g., Commonwealth v. Rodriguez , 370 Mass. at 687–688 (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).
Firearm: Defense of License. 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 (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 (2013).
Lack of Criminal Responsibility. In Commonwealth v. Lawson , 475 Mass. 806 (2016), the Supreme Judicial Court discussed the presumption of sanity:
“[T]he ‘presumption of sanity’ is not truly a presumption but rather an inference that the defendant is probably criminally responsible because most people are criminally responsible for their acts. Where a defendant proffers a defense of lack of criminal responsibility and there is some evidence that supports it, this inference, standing alone, cannot support a finding that a defendant is criminally responsible beyond a reasonable doubt. Although the Commonwealth may not rely on ‘the presumption of sanity’ to establish criminal responsibility, the Commonwealth need not offer expert testimony in every case and may rely instead on the circumstances of the offense and all that the defendant did and said before, during, and after the offense to prove the defendant’s criminal responsibility.”
Id. at 807.