What Is An Adverse Inference Instruction to a Jury ?
What is the effect on the defendant's case if the jury are entitled to draw an inference ?
The People v. Van Winkle (1999) court recognized that an instruction permitting the jury to draw an inference violates due process if it undermines the jury's responsibility to find the ultimate facts beyond a reasonable doubt. (People v. Van Winkle, supra, 75 Cal. App. 4th at p. 142, citing Ulster County Court v. Allen (1979) 442 U.S. 140, 156 [99 S. Ct. 2213, 2224, 60 L. Ed. 2d 777].)
However, the Van Winkle court reasoned that because the inference from propensity was permissive and not mandatory under former CALJIC No. 2.50.01, and must be evaluated "as applied" in light of the facts of each case, it was consistent with the due process requirements discussed in Ulster County. (People v. Van Winkle, supra, 75 Cal. App. 4th at pp. 142-144.)
We find no support in Ulster County for the inference permitted by former CALJIC No. 2.50.02. In Ulster County, the Supreme Court reviewed a statutory evidentiary presumption and jury instructions implementing the presumption.
It concluded that the presumption, which was permissive rather than mandatory, did not violate due process as applied to the facts of the case. (Ulster County, supra, 442 U.S. at p. 167 [99 S. Ct. at pp. 2229-2230].)
The court made the following general comments on the constitutional issue before us:
"Inferences and presumptions are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of an element of the crime--that is, an 'ultimate' or 'elemental' fact--from the existence of one or more 'evidentiary' or 'basic' facts. . . . the value of these evidentiary devices, and their validity under the Due Process Clause, vary from case to case, however, depending on the strength of the connection between the particular basic and elemental facts involved and on the degree to which the device curtails the factfinder's freedom to assess the evidence independently.
Nonetheless, in criminal cases, the ultimate test of any device's constitutional validity in a given case remains constant: the device must not undermine the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt. . . .
"The most common evidentiary device is the entirely permissive inference or presumption, which allows--but does not require--the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant. . . . In that situation the basic fact may constitute prima facie evidence of the elemental fact. . . . When reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him. . . . Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the 'beyond a reasonable doubt' standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference.
For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination." (Ulster County Court v. Allen, supra, 442 U.S. at pp. 156-157 [99 S. Ct. at pp. 2224-2225].