TITLE THREE — INFERENCES, PRIMA FACIE EVIDENCE, AND PRESUMPTIONS
Rule 302. Criminal Proceedings
Scope. This section governs the operation of inferences, prima facie evidence, and presumptions in criminal cases.
Inferences. The jury generally may draw inferences in a criminal case in the same manner as in a civil case.
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.
Presumptions. The term “presumption” should not be used in connection with the State’s burden of proof.
The defendant cannot be required to satisfy the burden of disproving a fact that is essential to a finding or verdict of guilty.
The defendant may be required to satisfy a burden of production.
The State’s Burden. The defendant is presumed innocent. The State bears the burden of proving beyond a reasonable doubt every element of the offense charged and every fact essential to a finding or verdict of guilty, and that burden never shifts. No inference, no provision of prima facie evidence, no judicial notice, and no direction of the presiding judge under Rule 101(3) shall diminish it.
Permissive Inferences. An inference against a defendant may be submitted to the fact finder only where the inferred fact more likely than not flows from the basic fact proved. Where the inference is submitted:
the court shall instruct that the inference is permissive, that the fact finder may accept or reject it, and that the State retains the burden of proving each element beyond a reasonable doubt;
the court shall not instruct in terms that direct, require, or presume a finding against the defendant, and shall not instruct that the defendant bears the burden of rebutting the inference; and
where no jury sits, the court shall state in its findings the inference drawn and the basic facts found.
Mandatory Presumptions Prohibited. No instruction, ruling, or finding shall give a presumption the effect of establishing an element of an offense, of requiring the fact finder to find an element upon proof of another fact, or of requiring the defendant to disprove an element.
Burdens Upon a Defense.
A defendant bears the burden of producing evidence sufficient to raise a defense, whereupon the State bears the burden of disproving it beyond a reasonable doubt, unless a statute expressly places the burden of persuasion upon the defendant.
Justification is an affirmative defense, as 6 R. Stat. § 122.001 provides; duress is an affirmative defense, as 6 R. Stat. § 121.501 provides, subject to the exclusion stated in 6 R. Stat. § 121.502; and the execution of a superior’s order in the national guard which the actor does not know to be unlawful is an affirmative defense, as 6 R. Stat. § 121.503 provides.
Entrapment is an affirmative defense which the defendant must prove by a preponderance of the evidence, and the issue shall be tried by the court in the absence of the jury, as 6 R. Stat. § 121.702 provides, subject to the exclusion stated in 6 R. Stat. § 121.703.
Where a burden of persuasion is placed upon a defendant by statute, the standard is a preponderance of the evidence unless the statute provides otherwise, and the court shall instruct that the burden extends only to that defense and does not relieve the State of its burden upon every element.
Silence; Refusal; Assertion of a Privilege.
No inference adverse to a defendant shall be drawn from the defendant’s exercise of the right to refuse to testify, from the exercise of the privilege against self-incrimination by a defendant or a witness, or from a defendant’s refusal, absent a court order or warrant, to provide real or physical evidence or to cooperate in an investigation, as Rule 505 provides.
On the request of the defendant or of counsel for the defendant, the court shall instruct the jury that no inference may be drawn from the defendant’s failure to testify. Where no jury sits, the court shall state on the record that it draws none. Where the defendant is absent under 6 R. Stat. § 131.501, the court shall give the instruction or make the statement upon the request of counsel or upon its own motion, and shall in addition observe Rid. R. Crim. P. 18.4(4), by which the defendant’s absence is not evidence of guilt.
Counsel shall not comment upon, and shall not invite the fact finder to consider, a matter this subdivision forbids, and Rule 1107(2)(c)(5) governs such comment in argument.
Judicial Notice. A court shall not take judicial notice in a criminal trial of any element of an alleged offense, as Rule 201(3) provides. A fact judicially noticed in a criminal case is subject to Rule 201(10)(b), and the fact finder may but is not required to accept it.
Statutory Provisions of Prima Facie Evidence. A party relying in a criminal case upon a statutory provision that a fact is prima facie evidence of another fact shall identify the provision on the record before the close of the evidence. The court shall determine whether the provision applies and shall instruct upon it consistently with Rule 302(3), Rule 302(5), and Rule 302(6).
Consciousness of Guilt. Evidence of a defendant’s conduct evincing consciousness of guilt is admissible as Rule 1105(1) provides, is alone insufficient to support a verdict or finding of guilt, and shall be the subject of an instruction to that effect where a jury sits and of a statement to that effect in the court’s findings where none sits.
Instructions and Findings. At the conclusion of the argument of counsel the court shall charge the jury with the law of the case and the penalty for the offense charged, as 6 R. Stat. § 131.307 provides, and shall inform counsel of its proposed action upon requested instructions before argument, as 6 R. Stat. § 131.308 provides. In a proceeding in which no jury sits, which is the ordinary course under 6 R. Stat. § 131.306, the court shall apply the principles stated in this rule in its findings and shall state on the record the burden and standard it has applied.