Mass. R. Evid. 302
Mass. Guid. Evid. 302
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.)
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). Cf. Commonwealth v. Bankert, 103 Mass. App. Ct. 107, 112-115 (2023) (connection between damage to gas meters at defendant's business and defendant's creation of that damage with intent to defraud sufficiently strong and rational to warrant lawful permissive inference).
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); Commonwealth v. McDuffee, 379 Mass. 353, 363-364 (1979); and 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."). See Commonwealth v. Bankert, 103 Mass. App. Ct. 107, 115-118 (2023) (instruction that could have led jury to understand that they were bound to presume intent unless there was "believable evidence to the contrary," thus implying that defendant "bore an affirmative burden of persuasion" once underlying facts were proved, created impermissible mandatory presumption).
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 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., Rodriguez, 370 Mass. at 687-688 (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 of an intent 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 the defendant has no better access to that information than the Commonwealth. Commonwealth v. Humphries, 465 Mass. 762, 771 (2013).
Lack of Criminal Responsibility. The presumption of sanity is not truly a presumption but rather is an inference that a defendant is "probably criminally responsible." Commonwealth v. Lawson, 475 Mass. 806, 807 (2016). Where a defendant relies on a defense of lack of criminal responsibility and there is some supporting evidence, the inference of sanity alone "cannot support a finding that a defendant is criminally responsible beyond a reasonable doubt." Id. However, expert testimony is not needed in every case, and the Commonwealth may rely on the "circumstances of the offense," including the defendant's words and deeds around the offense, to prove a defendant's criminal responsibility. Id.