State v. Eric Benjamin Gardner, 2006 WI App 92
For Gardner: Michael K. Gould, SPD, Milwaukee Appellate
¶9 In addressing this issue, it is first necessary to define what a presumption is and when a presumption denies a criminal defendant due process. A presumption allows a “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.” Ulster County Court v. Allen , 442 U.S. 140, 156 (1979). The presumption can be permissive, which “allows–but does not require–the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one,” id. at 157, or it can be mandatory, requiring that the trier of fact “ must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts,” id.
¶10 In general, a permissive presumption is constitutional as long as there is a rational connection between the basic fact and the elemental fact. Id. at 165. A mandatory presumption, however, whether conclusive or rebuttable, is not constitutional because it relieves the State of its burden to prove every element of an offense beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 521-24 (1979).