dissenting:
The defendant was charged with burglary, which requires the prosecutor to prove beyond a reasonable doubt that the defendant (1) without authority (2) knowingly entered a building (3) with intent to commit therein a felony or theft. (Ill. Rev. Stat. 1977, ch. 38, par. 19 — 1.) The prosecutor was unable to directly prove these elements in that there was no evidence which placed the defendant at the scene of the crime. Instead the prosecutor proved that the defendant was in possession of the stolen goods and relied on a common law inference to prove the burglary. The common law inference was embodied in Illinois Pattern Jury Instruction, Criminal, No. 13.21 (1968), which reads:
“If you find that the defendant had exclusive possession of recently stolen property, and there was no reasonable explanation of his possession, you may infer that the defendant obtained possession of the property by burglary.”
The defendant produced witnesses who testified that he had bought the goods from one Bob Lewis and produced a bill of sale co-signed or witnessed by four persons who allegedly saw the sale occur. The jury returned a verdict of guilty. I believe the conviction should be reversed and remanded for a new trial.
The use of presumptions in criminal proceedings has long been the source of constitutional problems. These problems arise because our system of criminal justice is a “careful coalescence of a variety of constitutional safeguards” which presumptions tend to undercut. (Comment, Criminal Statutory Presumptions and Reasonable Doubt Standard of Proof: Is Due Process Overdue? 19 St. Louis U. L.J. 223 (1974).) For example, in the instant case the prosecution is relieved of the burden of proving all the elements of burglary by simply using the common law inference which arises from unexplained possession of the stolen goods. The majority recognizes that the prosecution is relieved from proving each element of the burglary but then proceeds to ignore the consequences of this issue. Commentators have remarked that the use of criminal presumptions may lead to constitutional problems regarding due process, the right to a jury trial, a defendant’s right not to be compelled to be a witness against himself, and a defendant’s right not to have unfavorable comments made on his failure to testify. See Nesson, Reasonable Doubts and Permissive Inferences: The Value of Complexity, 92 Harv. L. Rev. 1187 (1979); Comment, Statutory Criminal Presumptions: Reconciling the Practical With the Sacrosanct, 18 U.C.L.A. L. Rev. 157 (1970).
Because of these problems, permissive inferences should be used sparingly, if at all. I do not quarrel with the majority’s statement that the legal inference arising from the unexplained possession of stolen goods is a permissible one. However, I believe it is inapplicable to the instant case and that the jury instruction embodying it should not have been given.
For purposes of considering the problems surrounding the instruction perhaps an effort to clarify the factual context would be helpful. Generally speaking, we are concerned with the relationship between two facts. Expressed in its simplest terms evidence of fact A, which may be described as the basic fact, the proved fact or the predicate fact, is employed to prove fact B, the presumed fact, because of some supposed relationship between fact A and fact B. In the type of factual context with which we are dealing, fact A is composed of four integral parts, namely (1) possession of (2) stolen property (3) which possession is recent after a burglary and (4) is unexplained. Proof of fact A, meaning all its parts, then is supposed to relate to proof of fact B, which is composed of three integral parts, namely (1) breaking and entering (2) the residence with (3) intent to commit a felony or theft.
At this juncture I believe it necessary to disclaim any disagreement with the proposition that the evidence of possession of stolen property by the defendant has probative value tending to prove the guilt of the possessor. I also believe the probative value of such evidence is increased the shorter the time between the offense and the time of possession and that such probative value is enhanced in proportion to the absence of any explanation of the possession. My initial disagreement stems from the effort to include by way of instruction a judicially mandated value to be accorded evidence which is probative but not conclusive.
Referring back to the problem of proving fact A to prove fact B, several logic problems arise. The majority simply states that “to comport with due process, the common law inference of burglary must satisfy the reasonable doubt standard.” But the majority fails to set forth any guidelines for determining what is necessary to meet the reasonable doubt standard. Assuming that it is the burden of the State to prove fact A, what is the degree of proof required? Must the fact be proved beyond a reasonable doubt? Or is it adequate to simply prove it by a preponderance of the evidence or simply by some evidence. It would seem to be necessary to prove the predicate fact beyond a reasonable doubt in that it would be illogical to say that a presumed fact could be proven beyond a reasonable doubt by merely proving the predicate fact by a preponderance of the evidence or by some evidence. Whatever the quantity of proof ought to be required, neither the presumption instruction nor any other instruction advises the jury on this point. In the absence of such advice, the jury is permitted, and in my judgment, improperly, to establish its own burden of proof where this is substantially the only fact to be proved by the State.
There is also the question of the nature of the burden of proof when there is a dispute about the existence of fact A. For example, in the instant case, the common law inference requires proof of unexplained possession of stolen goods. Yet the majority fails to address the problem of what is necessary to prove unexplained possession. Must the State prove that the possession is unexplained? Or need the State only prove possession, which would then shift the burden of production of evidence to the defendant to adequately explain the possession. I believe that allowing the State to merely prove possession is inadequate if the defendant’s constitutional rights are to be protected. The burden is on the State to prove every element of the crime beyond a reasonable doubt. If the State is to be permitted to use a “shortcut” it should have the burden of proving every element of the “shortcut” and should have the burden of proving affirmatively that there is no satisfactory explanation for possession.
Professor Nesson goes so far as to state that the only time drawing an inference from a lack of a satisfactory explanation is appropriate is when the prosecution not only proves the predicate fact, but also proves affirmatively that there is no satisfactory explanation for it.
“If there is affirmative evidence on the basis of which the jury can conclude that there is no innocent explanation for the suggestive predicate fact, then a verdict would be warranted beyond a reasonable doubt. * “ * The essential point is that the lack of a satisfactory explanation has been demonstrated by the prosecution as part of its case, and not by shifting a burden to the defendant.” Nesson, Reasonable Doubt and Permissive Inferences: The Value of Complexity, 92 Harv. L. Rev. 1187, 1213-14 (1979).
Even if the predicate fact is proved beyond a reasonable doubt, what relationship must exist between it and the presumed fact so as to prove the presumed fact beyond a reasonable doubt? It seems clear that the proof must be more stringent than a simple “more likely than not” relation. But must the correlation between the facts be 100 percent in order to satisfy the constitutional standard. Is 95 percent adequate? Can it be quantified at all and should it? (See Ashford & Risinger, Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale L.J. 165 (1969); Christie and Pye, Presumptions and Assumptions in Criminal Law: Another View, 1970 Duke L.J. 919; Nesson, Reasonable Doubt and Permissive Inferences: The Value of Complexity, 92 Harv L.R. 1187 (1979).) Again the instruction contains no advice to the jury on how it is to determine the relationship between predicate fact and presumed fact, although the majority seems to indicate this is a factual determination to be made by the jury on an ad hoc, case-by-case, basis. Notwithstanding the conclusion in Barnes v. United States (1973), 412 U.S. 837, 37 L. Ed. 2d 380, 93 S. Ct. 2357, that the relationship between the predicate fact and presumed fact must exist beyond a reasonable doubt, the case offers no method for determining this relationship. Further questions arise if there is a dispute about the relationship and, if so, what type of burden of proof exists concerning such relationships. These are all problems regarding the presumption which the majority fails to address.
Previously I stated that the failure of the prosecution to prove a lack of satisfactory explanation should preclude the giving of the instruction. In the instant case there is an even stronger argument for not instructing the jury as to the inference. In the instant case the defendant produced evidence of a plausible explanation for his possession of the stolen goods. The defendant introduced a bill of sale attested to by four witnesses who allegedly saw the sale take place.
Assuming for the moment that the prosecution need prove possession of the stolen goods and some evidence that it is unexplained, the issue arises as to what effect the introduction of evidence explaining the possession has on the legal inference. Should the presumption be allowed to stand, or should the introduction of evidence rebutting the predicate fact preclude its being given to the jury? I believe that once evidence has been introduced which would justify the jury in finding the nonexistence of the predicate fact (unexplained possession), then the existence or nonexistence of the predicate fact and presumed fact should be determined as if no presumption had ever been operative, i.e., the presumption should just “drop out” of the case. This approach is known as the pure Thayer rule. The Supreme Court in Barnes v. United States (1973), 412 U.S. 837, 37 L. Ed. 2d 380, 93 S. Ct. 2357, cited Thayer’s Preliminary Treatise on Evidence with approval, although using it to prove a different point.
The essence of our criminal justice system is the presumption that the defendant is innocent and that the prosecution must prove every element of the crime beyond a reasonable doubt. Dropping the presumption will not deny the jury the power to find the defendant guilty. The jury may still infer the burglary from the possession of stolen goods, for this is a natural inference. At this juncture I believe it important to observe that the instruction as usually given and the one given in this case is not a neutral instruction. Although the instruction is permissive in the sense that it advises the jury that it “may” find the presumed fact from the predicate fact, it does not advise the jury that it “need not” find the presumed fact. In addition, there is no advice to the jury that it should consider both the predicate fact and the presumed fact with all of the other evidence in the case before deciding on the defendant’s guilt. The Supreme Court, in Tot v. United States (1943), 319 U.S. 463, 87 L. Ed. 1519, 63 S. Ct. 1241, has stated that juries are permitted to infer from one fact the existence of another fact essential to guilt if reason and experience support the inference. “In many circumstances courts hold that proof of the first fact furnishes a basis for inference of the existence of the second.” (319 U.S. 463, 467, 87 L. Ed. 1519, 1524, 63 S. Ct. 1241, 1244.) Without the presumption, however, the jury will simply be measuring the evidence the prosecution presents (possession) against the evidence that the defendant presents (an explanation of the possession). There will simply be no instruction putting undue weight on the prosecution’s evidence to the detriment of the defendant’s case. In the instant case the jury could still infer from the defendant’s possession of the goods that the defendant was guilty of burglary. They could weigh the defendant’s explanation against this inference and decide if the prosecution had proved the defendant guilty beyond a reasonable doubt. Thus, there was no need for the presumption and since it worked to the defendant’s detriment, as shown above, it should not have been given.
For the above reasons I must respectfully dissent and would reverse and remand for a new trial.