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August 28, 2012

"Presumed Guilty"

The title of this post is the title of this notable new paper by Professor Terrence Cain now available via SSRN. Here is the abstract:

It would probably surprise the average American that prosecutors need only prove guilt beyond a reasonable doubt sometimes.  Although the Due Process Clauses of the Constitution require that the government prove each element of an alleged criminal offense beyond a reasonable doubt, the use of statutory presumptions has relieved the government of this responsibility, and in some cases, has even shifted the burden to the defendant to disprove the presumption.  Likewise, the Sixth Amendment grants a criminal defendant the right to have the jury and the jury alone determine whether the government has met its burden and ultimately whether the person is guilty or not.  By legislative fiat, statutory presumptions have taken the place of proof, and as a consequence, usurped the jury’s role as the ultimate authority on whether the prosecution has satisfied its burden of proof.  These presumptions violate the constitutional guarantees of the right to have the government prove each element of an offense beyond a reasonable doubt and the right to have a jury find all facts necessary to convict.

The Supreme Court has heard this argument before and rejected it.  It has not, however, reconsidered it in the aftermath of its decisions in Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker.  These cases breathed much needed new life into the Sixth Amendment jury trial guarantee, and in the process put an end to a two decade legislative encroachment on the jury’s historic function as the sole arbiter of whether the government has proved all the essential facts necessary to convict a person of a crime.  Apprendi, Blakely, and Booker cast doubt on the validity of statutory presumptions in criminal cases.  This article will explain why that is so.

August 28, 2012 at 09:29 PM | Permalink

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Comments

In some jurisdictions, I know that there are laws in CP cases that shift the burden to the defendant to prove that the images on the computer are of adults not children. One case I'm familiar with got caught up in that burden shifting hoo-ha. It was only when they were able to find the alleged CP on a website that claimed all models were over 18 did the charges get dropped. Of course, if they couldn't find it....

Posted by: Guy | Aug 28, 2012 10:27:42 PM

i agree. i know in one case the guy was accused of having CP. Of course the case fell completley apart when the 28 YEAR OLD WOMAN walked into court to testify for the defense!

if this is true!

"the use of statutory presumptions has relieved the government of this responsibility, and in some cases, has even shifted the burden to the defendant to disprove the presumption."

and

"By legislative fiat, statutory presumptions have taken the place of proof, and as a consequence, usurped the jury’s role as the ultimate authority on whether the prosecution has satisfied its burden of proof. These presumptions violate the constitutional guarantees of the right to have the government prove each element of an offense beyond a reasonable doubt and the right to have a jury find all facts necessary to convict.

The Supreme Court has heard this argument before and rejected it."

Then our criminal govt has went even farther into TREASON than i though!

and if those fucktards on the bench don't see it. Time to SHOOT thier asses and bring in a new batch!

Posted by: rodsmith | Aug 29, 2012 10:30:55 AM

This abstract is seriously misleading.

"The Supreme Court has heard this argument before and rejected it." Nonsense. The argument stated in the first paragraph is precisely the one accepted by the Supreme Court in Sandstrom v. Montana.

What the author is really arguing is that the Supreme Court's acceptance of permissive inferences, distinguishing them from the presumptions struck down in Sandstrom, is incorrect and inconsistent with the Apprendi line.

But you have to get waaaay into the article to find that. That's what should have been in the abstract.

Posted by: Kent Scheidegger | Aug 29, 2012 1:23:04 PM

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