The use of presumptions in criminal proceedings is more restricted than in civil proceedings. Of course, a criminal defendant is presumed innocent,10 and criminal defendants are entitled to the benefit of all presumptions in their favor.11 The government, on the other hand, is more limited in its use of presumptions. The State is not entitled to any conclusive presumptions,12 and may use rebuttable presumptions only to the extent that such presumptions do not relieve the State of its burden of proving every element of the crime charged13 and do not shift the burden of persuasion to the defendant.14 As such, presumptions in favor of the State may only rise to the level of permissible inferences.15 Such inferences permit but do not require the finder of fact to infer the existence of an element of the offense from the existence of facts in evidence, but place no burden on the defendant beyond that of coping with the facts presented by the prosecution.16 In this respect the effect of these “presumptions” is similar to the effect of the doctrine of res ipsa loquitur.17
In the event that the State relies on a presumption, the defendant is entitled to a jury instruction that (i) the defendant has no duty to testify or present evidence; (ii) the inference may be rebutted by evidence other than the defendant’s own testimony; and (iii) the presumption does not relieve the State of its burden of proving guilt beyond a reasonable doubt.18 A jury may convict a defendant, notwithstanding the existence of evidence tending to rebut the presumption, if the jurors have no reasonable doubt about the defendant’s guilt.19
Several common-law presumptions are expressly preserved in the Criminal Code, albeit subject to the limitation that they have the force of inferences only. A person is presumed to intend the natural and probable consequences of his or her actions.20 The possession of recently stolen goods permits an inference that the possessor is the one who stole the goods.21 This latter presumption takes effect only when the possession of the goods has been proved and may be indulged by the jury only if it finds beyond a reasonable doubt that the stolen goods were actually in the defendant’s possession22 If a person acquires property for consideration which that person knows is substantially below its reasonable value, or where the affixed identification or serial number has been altered, removed, defaced or falsified, it may be inferred that the recipient of such property knew that it was stolen.23 When a person possesses or disseminates obscene material in the course of his or her business, it may be inferred that that party does so knowingly or recklessly.24
A non-statutory presumption available in a criminal case is that a defendant acted with malice, particularly where a deadly weapon was used.25 Where malice is an element of the crime charged, however, this common-law presumption may be subject to the rule that a presumption cannot be used to establish a fact in a criminal case.26
At common law, children under seven years of age were conclusively presumed to be incapable of forming criminal intent. Between the ages of seven and fourteen, the same presumption applied, but the presumption was rebuttable by strong and clear evidence beyond all reasonable doubt. After fourteen, the presumption was gone.27 The establishment by the legislature of juvenile courts conferring on those courts exclusive jurisdiction over children charged with non-capital crimes displaced the common-law scheme with respect to trying and convicting a child of a crime.28 The extent to which this displacement has altered the common-law scheme is as yet undefined, although one court has raised the question and held that the infancy defense does not apply to a Family Court delinquency proceeding.28.1
10. Cook v. State, 977 A.2d 803, 850 (Del. 2009), cert. denied, 130 S.Ct. 1506 (2010);Hardy v. State, 962 A.2d 244, 247 (Del. 2008) (“[t]he Delaware Constitution recognizes the presumption of innocence as a fundamental right”); Hunter v. State, 815 A,2d 730, 736 (Del. 2002); Riley v. State, 496 A.2d 997, 1020 (Del. 1985), cert. denied, 478 U.S. 1022 (1986); State v. Matushefske, 215 A.2d 443 (Del. Super. 1965); State v. Buckingham, 134 A.2d 568, 571 (Del. Super. 1957); State v. Stocidey, 82 A. 1078, 1080 (Del. Gen. Sess. 1911); State v. Roberts, 78 A. 305, 311 (Del. O. & T. 1910), aff’’d, 79 A. 396 (Del. 1911); State v. Uzzo, 65 A. 775, 778 (Del. O. & T. 1907); State v. DiGuglielmo, 55 A. 350, 351 (Del. Gen. Sess. 1903); State v. Foreman, 41 A. 140, 141 (Del. Gen. Sess. 1893); State v. Blackburn, 75 A. 536, 540 (Del. O. & T. 1892).
11. See State v. Weiner, 28 A.2d 16, 18 (Del. Gen. Sess. 1942).
12. 11 Del. C. § 306(a); D.R.E. 303; State v. Dickens, 602 A.2d 95, 100 (Del. Super. 1989).
13. Craig v. State, 457 A.2d 755, 760 (Del. 1983); Traylor v. State, 458 A.2d 1170, 1177 (Del. 1983).
14. Hall v. State, 473 A.2d 352, 355 (Del. 1984); Craig v. State, 457 A.2d 755, 761 (Del. 1983).
15. Craig v. State, 457 A.2d 755, 761 (Del. 1983); State v. Lamborn, Cr. A. Nos. 1N80-0815-0816, slip op. at 4, Poppiti, J. (Del. Super. Aug. 31, 1988), aff’d mem., 574 A.2d 283 (Del. 1990).
16. Deputy v. State, 500 A.2d 581, 597 (Del. 1985), cert. denied, 480 U.S. 940 (1987); State v. Dickens, 602 A.2d 95, 101-02 (Del. Super. 1989).
17. See § 10:9.
18. 11 Del. C. § 306(e); D.R.E. 303; Hall v. State, 473 A.2d 352, 355 (Del. 1984); State v. Lamborn, Cr. A. Nos. 1N80-0815-0816, slip op. at 4, Poppiti, J. (Del. Super. Aug. 31, 1988), aff’d mem., 574 A.2d 263 (Del. 1990). See also Craig v. State, 457 A.2d 755, 762 (Del. 1983); Plass v. State, 457 A.2d 362, 367-68 (Del. 1983).
19. 11 Del. C. § 306(e); D.R.E. 303.
20. 11 Del. C. § 366(c)(l); D.R.E. 303. See also Harris v. State, 965 A.2d 691, 693 (Del. 2009); Winborne v. State, 455 A.2d 357, 360 (Del. 1982); Whalen v. State, 492 A.2d 552, 564 (Del. 1985); Plass v. State, 457 A.2d 362, 366-67 (Del. 1983).
21. 11 Del. C. § 366(c)(2). See also Craig v. State, 457 A.2d 755, 761-62 (Del. 1983); Gibbs v. State, 300 A.2d 4, 5-6 (Del. 1972); Shaw v. State, 281 A.2d 610, 611 (Del. 1971); Crawley v. State, 219 A.2d 158, 159 (Del. 1966); State v. White, 152 A. 393 (Del. 1929); State v. Carr, 57 A. 370, 371 (Del. 1904).
22. Wiggins v. State, 210 A.2d 314, 316 (Del. 1965) (instruction as to presumption improper where judge failed to instruct that presumption could not be indulged in unless jury first found beyond a reasonable doubt that stolen goods were actually in defendant’s possession).
23. 11 Del. C. § 852.
24. 11 Del. C. § 1363.
25. Conyers v. State, 396 A.2d 157, 160 (Del. 1978); Hallowell v. State, 298 A.2d 330, 332 (Del. 1972), cert. denied, 411 U.S. 951 (1973); Seeney v. State, 277 A.2d 670, 672 (Del. 1971), vacated on other grounds, 408 U.S. 939 (1972); Smallwood v. State, 266 A.2d 184, 185 (Del. 1970); Freeman v. State, 242 A.2d 311, 312 (Del. 1968); Brown v. State, 234 A.2d 442, 443 (Del. 1967); Brinkley v. State, 233 A.2d 56, 57 (Del. 1967); Quillen v. State, 110 A.2d 445, 450 (Del. 1955), reh’g denied, 49 Del. 163, 112 A.2d 848 (Del. 1955); Powell v. State, 86 A.2d 371, 374 (Del. 1952); Bantum v. State, 85 A.2d 741, 751 (Del. 1952).
26. See 11 Del. C. §§ 306(b) (preserving all common law presumptions “except to the extent that there are inconsistent with this Criminal Code”), 307(b) (where the defendant’s state of mind is an element of the offense, it is sufficient to establish a prima facie case for the State to prove surrounding circumstances from which the jury may infer that the defendant’s state of mind was of the sort required for commission of the offense); Deputy v. State, 500 A.2d 581, 597 (Del. 1985), cert. den., 480 U.S. 940 (1987) (permitting the jury to infer the defendant’s state of mind from proof of surrounding circumstances does not relieve the State of its burden of proving every element of the offense beyond a reasonable doubt).
27. Marine v. State, 607 A.2d 1185, 1208 n.l2 (Del. 1990), review dismissed, 505 U.S. 1247 (1992); State v. Boardman, 267 A.2d 592, 595 (Del. Super. 1970); State v. George, 54 A. 745 (Del. Gen. Sess. 1902); State v. DiGuglielmo, 55 A. 350 (Del. Gen. Sess. 1903); State v. Kavanaugh, 53 A. 335, 336 (Del. Gen. Sess. 1902); State in the Interest of Charles G., Nos. JN91-0451 & 90120200.00, slip op. at 4, Horgan, J. (Del. Fam. Sept. 10, 1991).
28. Marine v. State, 607 A.2d 1185, 1208 n.12 (Del. 1990), review dismissed, 505 U.S. 1247 (1992).
28.1. State v. Wright, 931 A.2d 1008, 1010-13 (Del. Fam. Ct. 2007).
© 2010 David L. Finger