Rutgers Law Review
Because criminal verdicts provide no clue as to how the jury reached its decision, jury instructions are crucial indicators of how a deductive device operates. Deductive devices are mechanisms that allow or require the fact-finder to assume the existence of a fact when proof of other facts are shown. Any deductive device, whether permissive or mandatory, has pernicious possibilities that imperil the rationality of fact-finding. The controlling method of review for deductive devices in criminal cases simply require a rational connection between the basic fact and the presumed fact. However, the Supreme Court in Allen broke new ground in exempting permissive inferences from facial review—an innovation that finds no support in the cases cited by the Allen majority.
Sandstorm demonstrates a heightened sensitivity to the way a presumption device sounds to the ear of the juror. There, the Court’s primary concern was the propensity for the instruction to mislead the jury into regarding the presumption as conclusive or as shifting the burden of persuasion. The Court unanimously held that the mere possibility that the jury reached its decision in an impermissible manner requires reversal, even if the jury might have reached the same result in a constitutionally acceptable fashion. The combined impact of Allen and Sandstorm will undoubtedly encourage the use of permissive, rather than mandatory, presumptions. Sandstorm will discourage any deviation from permissive language so as to provide clarity and avoid reversal, while Allen will exempt the carefully drafted inference from facial appellate review, withdrawing it from meaningful review if all formalities are observed.
John M. Schmolesky, County Court of Ulster County v. Allen and Sandstorm v. Montana: The Supreme Court Lends an Ear But Turns Its Face, 33 Rutgers L. Rev. 261 (1981).