CHAPTER 32

BURDENS OF PROOF AND PRESUMPTIONS

§ 32.01 Proof Beyond a Reasonable Doubt

§ 32.02 - Defining Elements

§ 32.03 - Defining Reasonable Doubt

§ 32.04 The Presumption of Innocence

§ 32.05 Affirmative Defenses

§ 32.06 Presumptions Against the Defendant

§ 32.07 - Permissive and Burden-Shifting Presumptions

§ 32.08 - Charging Permissive Presumptions

§ 32.09 - The Requirement of a Rational Connection

§ 32.10 - Nonconstitutional Objections to Permissive

Presumptions

§ 32.11 Unconstitutional Presumptions as Harmless Error

§ 32.12 Presumptions in the Defendant's Favor

§ 32.13 Motions for Judgment of Acquittal

§ 32.01

Proof Beyond a Reasonable Doubt

The prosecution has the burden to prove all elements of the offense beyond a reasonable doubt, the traditional common law standard for criminal trials, and also a requirement of due process.{1} It must establish by the same standard that the crime occurred within the jurisdiction of the state.{2}

§ 32.02

- Defining Elements

A state cannot require the defense to disprove elements of the crime.{3} Within limits, however, it can ease the state's burden of proof by redefining the elements of liability and requiring the defense to prove mitigating facts as an affirmative defense.{4} In 1983 the Vermont Legislature made the defendant's sanity, which used to be considered an element, provable by the prosecution beyond a reasonable doubt, an issue for the defendant to negate as affirmative defense; the Vermont Supreme Court upheld the law against a claim that the legislature had unconstitutionally shifted the burden of proof on an element of the offense; rather, the court wrote, it had simply eliminated sanity as an element.{5}

The legislature can accomplish a similar result, the United States Supreme Court held in McMillan v. Pennsylvania,{6} by redefining an element as a sentencing factor, which the prosecution need not prove by any rigid quantum of proof. And the prosecution can sometimes avoid the reasonable doubt burden by a charging decision. In State v. Thompson{7} the prosecutor charged the defendant with sexual assault on a minor, a crime which did not require proof of coercion, and then alleged at sentencing that he committed the assault with force. The defendant complained that the prosecutor was trying, in effect, to establish the crime of forcible rape without proving force beyond a reasonable doubt. The Vermont court saw nothing wrong with the tactic: use of force was a relevant sentencing consideration, and facts relied on at sentencing do not have to be established beyond a reasonable doubt.{8}

There are, however, constitutional limits to the state's ability to redefine crimes in this way, as Justice Stevens pointed out in his dissent in McMillan:

Consider, for example, a statute making presence "in any private or public place" a "felony punishable by up to five years imprisonment" and yet allowing "an affirmative defense for the defendant to prove, by a preponderance of evidence, that he was not robbing a bank."{9}

Similarly,

A legislative definition of an offense named "assault" could be broad enough to encompass every intentional infliction of harm by one person upon another, but surely the legislature could not provide that only that fact must be proved beyond a reasonable doubt and then specify a range of increased punishments if the prosecution could show by a preponderance of the evidence that the defendant robbed, raped, or killed his victim "during the commission of the offense."{10}

§ 32.03

- Defining Reasonable Doubt

Beyond the obvious fact that proof beyond a reasonable doubt means more than a preponderance of evidence, and more than "clear and convincing" evidence, the meaning of the term is elusive, and in recent years the Vermont Supreme Court has not found any reformulations that it particularly liked.{11}

In Holland v. United States{12} the United States Supreme Court wrote that a reasonable doubt was "the kind of doubt that would make a person hesitate to act[,]" a phrase which remains the only officially vetted definition. The judge need not charge it, however: giving up the task of definition as fruitless or unnecessary, the Vermont Supreme Court now holds and that trial judges need not attempt any definition at all: "Once the trial court has stated the rule of reasonable doubt correctly, `[n]othing further by way of definition is required.'"{13} For the same reasons, the judge can prevent defense counsel from asking potential jurors for their understanding of the term at voir dire.{14}

§ 32.04

The Presumption of Innocence

By statute the presumption of innocence "shall attend the accused until the jury renders a verdict of guilty, and the court shall charge the jury accordingly."{15}

The United States Supreme Court sees the presumption of innocence as nothing more than a corollary of the reasonable doubt rule.{16} In Vermont, the presumption is seen as "itself a piece of evidence, to be considered by the jury in the defendant's favor in arriving at a verdict."{17} The Vermont formulation makes for a more pointed jury instruction, but the difference may be no more than rhetorical. Furthermore, the trial judge is under no obligation to charge it,{18} nor does he have to charge, in terms, that the presumption "when considered with all the other evidence in the case, may be sufficient to raise a reasonable doubt. . . ."{19}

§ 32.05

Affirmative Defenses

The state can constitutionally require the defense to prove affirmative defenses by a preponderance of the evidence, "provided that the affirmative defense `does not serve to negate any facts of the crime which the State is to prove in order to convict.'"{20} Items of proof which are not essential elements may be assigned to the prosecution,{21} and Vermont's law on where the burden lies on particular issues "is going through a period of development[,]"{22} that is, in disarray. As a general matter the burden will be put on the party "(1) seeking to prove the existence of a fact rather than its nonexistence, (2) to whose case the fact is essential, and (3) who has peculiar knowledge of the existence of the facts at issue."{23}

The Vermont Supreme Court by long-standing precedent has placed the burden on the state to negate a claim of self-defense, by proof beyond a reasonable doubt.{24}

More recently the court has assigned the defendant the burden of proving, by a preponderance of evidence, the defenses of entrapment,{25} insanity,{26} and necessity;{27} as well as the "agency" defense in drug cases (a claim that the defendant was acting as a police agent);{28} and a claim that the state lacked jurisdiction because the charged offenses occurred in "Indian country."{29} The defendant may also be required to prove, as an affirmative defense, that his case fits into various statutory exceptions (e.g., that possession of moose meat, otherwise illegal, was lawful because the defendant had a permit).{30}

Some "defenses" are so bound up in essential elements of the crime that the state cannot constitutionally shift the burden to the defendant. Claims of diminished capacity, for example, unlike some insanity claims, go directly to the mens rea elements of liability, and the prosecution's duty to prove the latter requires it also to disprove the former.{31} The same is true of alibi defenses.{32}

§ 32.06

Presumptions Against the Defendant

A presumption is an evidentiary device that allows or requires the trier of fact to find one fact (the "presumed" fact) from proof of another (the "basic" fact). When presumptions operate against the defendant in a criminal case, their constitutionality depends on whether they undermine the reasonable doubt standard.

§ 32.07

- Permissive and Burden-Shifting Presumptions

Presumptions are classified by their effect on the fact finder, but the terminology is inconsistent and confusing.{33} Presumptions which merely permit the fact finder to make the jump from basic fact to presumed fact, without placing any burden of rebuttal on the defendant, are called permissive presumptions or sometimes permissive inferences. An instruction that the jury may but need not infer fact A from fact B, or that "it is ordinarily reasonable" to do so,{34} is a permissive presumption or inference.

Presumptions that place a burden on the defense to rebut or explain the presumed fact are called mandatory or burden-shifting (or sometimes conclusive) presumptions.{35} An instruction that "the defendant is presumed to be sane" and that the jury should decide if sufficient evidence was introduced "to rebut or set aside the presumption" is an unconstitutional burden-shifting presumption.{36} So is a charge that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts[,]" because a jury could interpret it as placing a burden of rebuttal on the defendant.{37}

A common issue in presumption cases is whether the judge charged in the language of a burden-shifting presumption or merely a permissive one, and the pertinent inquiry is "the way in which a reasonable juror could have interpreted the instruction."{38} The question is crucial because Vermont law rules out all presumptions except the milder permissive kind. V.R.E. 303 requires ("except as otherwise provided by law") that all presumptions operating against the defendant be permissive, not mandatory, and that they "not shift to the accused the burden of producing evidence or of persuading the trier of fact that the presumed fact does not exist."{39} Burden-shifting presumptions also violate due process, except in the narrow class of cases where the basic and presumed facts are so closely related that one necessarily follows from the other beyond a reasonable doubt.{40}

Statutory presumptions, such as the DUI law presumption that a person with a blood alcohol content over a certain limit is under the influence, must be charged in language that avoids burden-shifting implications, even if the statutory language can be construed as shifting the burden of proof.{41}

§ 32.08

- Charging Permissive Presumptions

A permissive presumption allows (but does not require) the jury, "if it finds the existence of the basic fact . . . [to] regard that fact as sufficient evidence of the presumed fact. . . ."{42} In other words, the jury can base its finding of the presumed fact exclusively on the basic fact, ignoring other evidence.{43}

When the presumed fact "establishes guilt or is an element of the offense or negatives a defense[,]" the jury, in addition to being charged that the basic fact is "sufficient evidence of the presumed fact," must also be told that the existence of the presumed fact has to be proved beyond a reasonable doubt "on all the evidence[.]"{44}

Such instructions may leave most jurors (not to say most lawyers) scratching their heads. If the presumption is "sufficient" it "renders irrelevant the evidence on the issue because the jury may have relied upon the presumption rather than upon that evidence."{45} On the other hand, if the jury must look to "all the evidence" to determine whether the presumed fact has been proved beyond a reasonable doubt, the presumption is technically irrelevant.

§ 32.09

- The Requirement of a Rational Connection

Under the constitution permissive presumptions may be charged only if the basic and presumed facts are related by a "rational connection," which means that it is more likely than not that the presumed fact will flow from the basic fact.{46} This more-likely-than-not connection, the United States Supreme Court held in County Court of Ulster County v. Allen,{47} must be assessed case by case on the evidence as a whole, rather than by judging the presumption "on its face."{48} The case involved the rationality of a statutory presumption that the presence of a firearm in an automobile is presumptive evidence of its illegal possession by all occupants of the vehicle, and the inference was a rational one on the particular facts, whether or not it could be said to be rational as a general matter. The problem with this holding, as Justice Powell pointed out in his dissent, is that the jury may base its verdict exclusively on the basic fact and the presumption.

I agree that the circumstances relied upon by the Court in determining the plausibility of the presumption charged in this case would have made it reasonable for the jury to "infer that each of the respondents was fully aware of the presence of the guns and had both the ability and the intent to exercise dominion and control over the weapons." But the jury was told that it could conclude that respondents possessed the weapons found therein from proof of the mere fact of respondents' presence in the automobile. For all we know, the jury rejected all of the prosecution's evidence concerning the location and origin of the guns, and based its conclusion that respondents possessed the weapons solely upon its belief that respondents had been present in the automobile.{49}

Even so, the Vermont Supreme Court has adopted the Ulster County majority view without discussion,{50} although it may only have done so only as a matter of federal constitutional law, leaving the state constitutional question undecided.{51}

V.R.E. 303(c) adopts the Ulster County majority approach, but it links rationality to the reasonable doubt standard, as opposed to Ulster County's more-likely-than-not test: if the presumption "establishes guilt or is an element of the offense or negatives a defense" it may be charged to the jury "only if a reasonable juror on the evidence as a whole, including the evidence of the basic fact, could find guilt or the presumed fact beyond a reasonable doubt." If the presumption establishes something less than guilt or an element of the offense, it can be charged only if "the basic fact is supported by substantial evidence or is otherwise established, unless the court determines that a reasonable juror on the evidence as a whole could not find the existence of the presumed fact."{52}

§ 32.10

- Nonconstitutional Objections to Permissive Presumptions

The fact that a permissive presumption passes the constitutional test of rationality does not mean that the judge is obliged to charge it. Some presumptions are pure creatures of the common law - instructions on flight,{53} recent possession of stolen property,{54} and the presumption that witnesses tell the truth,{55} are three examples - which a judge need not charge, and should not if they would tend to overvalue some facts and devalue others. Instructions, on general principles, should be even-handed and "not give[] undue prominence to any fact, claim or circumstance";{56} in a case where a number of people fled from a crime scene, an instruction that the defendant's flight raised an inference of his consciousness of guilt, could be seen as distinctly pro-prosecution.{57} One commentator writes, "The key problem with permissive inferences is that they isolate and abstract a single circumstance . . . [and] permit juries to avoid assessing the myriad facts which make specific cases unique."{58}

§ 32.11

Unconstitutional Presumptions as Harmless Error

Because jury instructions must be judged as a whole, a common question on appeal is whether arguably burden-shifting language was "cured" by other parts of the jury instructions which correctly assigned the burden of proof to the state. A general "boilerplate" charge on the presumption of innocence or the state's duty to prove all elements beyond a reasonable doubt may not be "rhetorically inconsistent" with an unconstitutional presumption,{59} because the jury might interpret the presumption as a means by which the prosecution can satisfy its burden of proof. Even truly contradictory instructions may not cure an unconstitutional presumption, however, because "[a] reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict."{60} The Vermont Supreme Court has not always heeded this admonition, however.{61}

If the reviewing court agrees that a burden-shifting presumption has been charged, it is not clear whether the error can ever be found harmless.{62}

§ 32.12

Presumptions in the Defendant's Favor

The same limitations do not apply to presumptions that operate in favor of the defense. Thus, while the statutory DUI blood alcohol presumption against the accused can only be charged in terms of a permissive inference, a similar presumption operating in favor of the accused (that a motorist with a blood alcohol content of less than .05 percent shall be presumed not to be under the influence) should be charged as a mandatory presumption.{63}

A presumption in favor of the accused operates like a presumption in a civil case.{64} It "imposes on [the prosecution] the burden of producing evidence sufficient to support a finding that the presumed fact does not exist," but does not shift the burden of persuasion.{65} If the prosecution meets its burden of production, the instruction disappears from the case (in the manner of a "bursting bubble") and the judge "shall submit the question of the existence of the presumed fact to the jury on the evidence as a whole without reference to the presumption. . . ."{66}

§ 32.13

Motions for Judgment of Acquittal

The sufficiency of the state's evidence can be challenged before verdict by a motion for judgment of acquittal pursuant to V.R.Cr.P. 29. The motion can seek acquittal on all or some of the charges, or (when a charge embraces a lesser-included offense) on the greater charge only, with the included offense being submitted to the jury. The granting of the motion raises a double jeopardy bar against a subsequent prosecution.{67}

In a jury trial the defense can (and almost always should) move for acquittal at two points: at the close of the prosecution's case-in-chief and, if that is denied, at the close of all the evidence.{68} Failure to renew the motion at the close of all the evidence operates as a waiver of any insufficiency claim.{69}

The test, which is the same test employed on motions to dismiss for lack of a prima facie case,{70} is "whether the evidence, when viewed in the light most favorable to the State, is sufficient to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt."{71} This is also the constitutional standard: a conviction based on evidence that does not pass Rule 29's test of sufficiency violates the due process reasonable doubt standard.{72}

Before 1981, when the court abandoned the "reasonable hypothesis of innocence" standard for circumstantial evidence cases,{73} the Vermont Supreme Court actively reviewed claims of insufficient evidence and granted a fair number of them. Appellate acquittals since then have been extremely rare, although the rejected test was not radically different from the current formulation, if it is different at all.{74} The fact that there have been only three appellate acquittals in the period 1983 to 1993{75} must be attributed more to a change in the court's attitude toward sufficiency-of-evidence claims than to its standard of review.

a. Sufficiency of Hearsay Evidence

Viewing the evidence "in the light most favorable to the state" implies an indifference to the quality and persuasive force of the state's evidence, and to the strength of the defendant's impeaching evidence. If the state's proof spells out the essential elements of culpability, it can get its case to the jury.

There are two important exceptions, however. When the prosecutor presents no confrontable evidence against the defendant, relying exclusively on prior statements which have been admitted as "past recollection recorded"{76} or as prior inconsistent statements,{77} the state cannot survive a motion for judgment of acquittal "unless the prior statement meets specific standards of reliability."{78} The rule may apply as well to other prior statements admitted as exceptions to the hearsay rule or as "nonhearsay," such prior statements of identification,{79} or statements of co-conspirators.{80}

b. The Corpus Delicti Rule

Under the common law a jury could not convict a defendant of a crime on the basis of his or her confession, without independent evidence of a corpus delicti - a loss or injury which has been caused by a criminal agency.{81} A prosecution which has proven no evidence of a corpus delicti apart from the defendant's admissions is legally insufficient, and the judge should grant an acquittal without submitting the case to the jury. Directed acquittals on this basis will be rare, however, because the weight of the independent evidence need not be great. The corroboration "need not independently prove the commission of the crime charged either beyond a reasonable doubt or by a preponderance of the evidence."{82}

1. In re Winship, 397 U.S. 358, 364 (1970); State v. Baker, 154 Vt. 411, 414 (1990); State v. Giroux, 151 Vt. 361, 364 (1989); State v. Messier, 145 Vt. 622, 625 (1985).

2. State v. Huginski, 139 Vt. 95, 97 (1980). But see State v. St. Francis, 151 Vt. 384 (1989) (once state shows crime occurred within Vermont, defendant bears burden to show that state lacked jurisdiction because it occurred in "Indian country").

3. Mullaney v. Wilbur, 421 U.S. 684 (1975).

4. Patterson v. New York, 432 U.S. 197 (1977) (defendant charged with murder may be made to bear burden of proving he acted under extreme emotional distress to mitigate offense to manslaughter).

5. State v. Messier, 145 Vt. 622, 625-27 (1985).

6. 477 U.S. 79 (1986) (enhanced punishment for crimes committed with firearms; aggravating factor need not be proved beyond a reasonable doubt).

7. 150 Vt. 640 (1989).

8. State v. Thompson, 150 Vt. 640, 645-46 (1989). Cf. State v. Searles, No. 91-038, slip op. 5-6 (Vt. Jan. 15, 1993) (proof of force admissible in prosecution for sexual assault on a minor to give jury "basic picture" of what happened).

9. McMillan v. Pennsylvania, 477 U.S. 79, 100 (1986) (quoting Dutile, The Burden of Proof in Criminal Cases: A Comment on the Mullaney-Patterson Doctrine, 55 Notre Dame L. Rev. 380, 383 (1980)).

10. McMillan v. Pennsylvania, 477 U.S. 79, 102 (1986).

11. In circumstantial evidence cases the court used to hold that the circumstances proved had to exclude every reasonable hypothesis of innocence, but it rejected that formulation in 1981 as too rigid and confusing. State v. Derouchie, 140 Vt. 437 (1981).

12. 348 U.S. 121, 140 (1954).

13. State v. Percy, No. 91-131, slip op. 11 (Vt. May 8, 1992) (quoting State v. Marston, 82 Vt. 250, 251 (1909)); State v. McMahon, No. 90-464 (Vt. Jan. 8, 1992).

14. State v. Bernier, 157 Vt. 265, 266-67 (1991).

15. 13 V.S.A. § 6502.

16. Taylor v. Kentucky, 436 U.S. 478, 483 (1978). Federal due process does not require a presumption of innocence charge in every case. Kentucky v. Whorton, 441 U.S. 786 (1979) (per curiam).

17. State v. Camley, 140 Vt. 483, 488 (1981). This used to be the federal view as well. Coffin v. United States, 156 U.S. 432, 458-61 (1895).

18. In State v. Joy, 149 Vt. 607, 616-17 (1988), and State v. Dix, No. 90-072 (Vt. July 9, 1991), the court held it was not error to refuse to charge that the presumption was a piece of evidence when the judge instructed in accordance with 13 V.S.A. § 6502.

19. State v. Baril, 155 Vt. 344, 350-51 (1990).

20. State v. Baker, 154 Vt. 411, 414 (1990) (quoting Patterson v. New York, 432 U.S. 197, 206-07 (1977)).

21. State v. Baker, 154 Vt. 411, 415-16 (1990); State v. St. Francis, 151 Vt. 384, 387-91 (1989).

22. State v. Baker, 154 Vt. 411, 416 (1990).

23. State v. Baker, 154 Vt. 411, 417 (1990); State v. St. Francis, 151 Vt. 384, 388 (1989).

24. State v. Barrett, 128 Vt. 458, 460 (1970); State v. Patterson, 45 Vt. 308, 314-16 (1873). The burden on self-defense can constitutionally be assigned to the defense. Martin v. Ohio, 480 U.S. 228, 232 (1987).

25. State v. Wilkins, 144 Vt. 22, 25 (1983).

26. State v. Messier, 145 Vt. 622, 627 (1985).

27. State v. Baker, 154 Vt. 411, 418-19 (1990).

28. State v. Lapan, No. 91-230, slip op. 3 (Vt. March 6, 1992).

29. State v. St. Francis, 151 Vt. 384 (1989).

30. State v. Letourneau, 146 Vt. 366, 368-69 (1985). Cf. State v. Baker, 154 Vt. 411, 416 (1990) (discussing State v. McCaffrey, 69 Vt. 85 (1896) (exceptions to truancy law)).

31. State v. Messier, 145 Vt. 622, 629 (1985).

32. State v. Beartheaume, No. 85-043 (Vt. June 2, 1987) (unpublished).

33. See V.R.E. 301, Reporter's Notes.

34. State v. Dusablon, 142 Vt. 95, 98-99 (1982).

35. Courts sometimes identify a class of "conclusive presumptions," which require the fact finder to find fact A from proof of fact B without any chance of rebuttal. Presumptions of this sort "are not really rules of evidence at all, but rules of substantive law that proof of a certain fact (e.g., that a child is under seven years of age) gives rise to a certain legal status or right (e.g., that he cannot be convicted of a felony)." V.R.E. 301, Reporter's Notes. Cf. State v. Doucette, 143 Vt. 573, 577-83 (1983) (Vermont's felony-murder rule defines an alternative way to prove first-degree murder and does not unconstitutionally shift burden of proof on premeditation).

36. State v. Gokey, 136 Vt. 33, 38 (1978).

37. Sandstrom v. Montana, 442 U.S. 510 (1979); State v. Martel, 143 Vt. 275 (1983).

38. Sandstrom v. Montana, 442 U.S. 510, 514 (1979); State v. Goyette, 156 Vt. 591, 600 (1991); State v. Dusablon, 142 Vt. 95, 98 (1982).

39. V.R.E. 303(b)(1).

40. Ulster County Court v. Allen, 442 U.S. 140, 159-60 (1979); United States v. Leary, 395 U.S. 6, 53 (1969) (presumed knowledge of illegal importation of marijuana).

41. State v. Dacey, 138 Vt. 491, 496-97 (1980). See also State v. Goyette, 156 Vt. 591, 600 (1991) (statutory inference of knowing possession of drug from defendant's presence in automobile); State v. McBurney, 145 Vt. 201, 205 (1984) (presumption of knowledge of insufficient funds in bad check prosecution). Similarly, a statute that provides that fact A is "prima facie evidence" of fact B can only be charged as a permissive presumption. V.R.E. 303(b)(2).

42. V.R.E. 303(d).

43. The Rule 303(d) instruction is clearly "permissive," in the sense that it does not require a finding of the presumed fact or shift the burden of proof. The Reporter's Notes to Rule 303 confusingly call it "`mandatory' in the sense that the jury [is] instructed that standing alone the presumption would support a finding for the state," as opposed to a "permissive" presumption which tells the jury that the basic fact is "merely one factor to which the jury may look in reaching its decision. . . ."

44. Id.; State v. Goyette, 156 Vt. 591, 602 (1991).

45. State v. Martell, 143 Vt. 275, 279 (1983) (quoting Connecticut v. Johnson, 460 U.S. 73, 85 (1983)).

46. Ulster County Court v. Allen, 442 U.S. 140, 165 (1979).

47. 442 U.S. 140 (1979).

48. Ulster County Court v. Allen, 442 U.S. 140, 162-63 (1979).

49. Ulster County Court v. Allen, 442 U.S. 140, 175-76 (1979) (Powell, J., dissenting).

50. State v. Goyette, 156 Vt. 591, 604 (1991).

51. In a pre-Rule 303, pre-Ulster County case the Vermont Supreme Court upheld an instruction that recent unexplained possession of stolen property gave rise to an inference that the possessor was the thief, on the ground that the inference was facially rational: "The law of Vermont long ago made the judgment that possession of recently stolen goods does establish as enough more likely than not that the possessor knew the goods to be stolen and, further, that he was a participant in the larceny. . . ." State v. Angelucci, 137 Vt. 272, 280 (1979).

52. V.R.E. 303(c).

53. See State v. Unwin, 139 Vt. 186, 193-94 (1980).

54. State v. Angelucci, 137 Vt. 272, 280 (1979).

55. State v. Snide, 144 Vt. 436 (1984).

56. State v. Camley, 140 Vt. 483, 489 (1981).

57. But see State v. Unwin, 139 Vt. 186, 194 (1980) (carefully limited instruction did not tell jury to give too much weight to fact of defendant's flight).

58. Nesson, Reasonable Doubt and Permissive Inferences: The Value of Complexity, 92 Harv. L. Rev. 1187, 1192 (1979).

59. Sandstrom v. Montana, 442 U.S. 510, 518-19 n.7 (1979); State v. Martell, 143 Vt. 275, 278 (1983).

60. Francis v. Franklin, 471 U.S. 307, 323 (1985).

61. In State v. Percy, 156 Vt. 468 (1991), the judge charged the jury that it had a duty "to reconcile conflicting testimonies if you can[,]" and that if unable to do so it should then "determine which of the witnesses is entitled to the greater credit." The court found no error, in part because the judge had repeatedly charged elsewhere in his instructions that the credibility of witnesses "was a matter solely for its consideration. . . ." Id. at 472-73 and n.1. See also State v. Goyette, 156 Vt. 591, 603 (1991) ("hypertechnical reading" of charge implied unconstitutional presumption, but instruction as a whole correctly charged reasonable doubt standard). Cf. State v. Day, 149 Vt. 165, 167 (1987) (charge in drug case that defendant should be acquitted "if you find" he acted only as agent for buyer cured by other parts of instructions correctly assigning burden of proof to state).

62. Compare State v. Martell, 143 Vt. 275, 279 (1983) (unconstitutional presumption never harmless) with Yates v. Evatt, 111 S. Ct. 1884 (1991) (laying down a special and more stringent harmless-error test for unconstitutional presumptions).

63. State v. Young, 143 Vt. 413, 414-15 (1983).

64. V.R.E. 303(a).

65. V.R.E. 301(a).

66. V.R.E. 301(c)(3).

67. See § 14.04.

68. V.R.Cr.P. 29(a). If the jury returns a guilty verdict, a motion for judgment of acquittal can be made within 10 days of the verdict. V.R.Cr.P. 29(c).

69. State v. Letourneau, 146 Vt. 366, 369-70 (1985); State v. Winters, 136 Vt. 469, 470 (1978); State v. Bressette, 136 Vt. 315 (1972).

70. See chapter 10.

71. State v. Derouchie, 140 Vt. 437, 445 (1981).

72. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

73. State v. Derouchie, 140 Vt. 445 (1981). See § 32.03, supra.

74. It is not easy to see how a reasonable doubt of guilt is not the logical equivalent of a reasonable hypothesis of innocence. The difference may only be one of emphasis.

75. State v. Wilcox, No. 92-355 (Vt. May 21, 1993); State v. Ravenna, 151 Vt. 96 (1989), and State v. Robar, No. 88-341 (Vt. Sept. 27, 1991).

76. V.R.E. 803(5).

77. V.R.E. 801(d)(1)(A).

78. State v. Robar, No. 88-341, slip op. 9-10 (Vt. Sept. 27, 1991).

79. V.R.E. 801(d)(1)(C). But see United States v. Owens, 484 U.S. 554, 560 (1988) (rejecting a confrontation clause challenge to such evidence).

80. V.R.E. 801(d)(2)(E).

81. State v. Blay, 77 Vt. 56, 59 (1904); State v. Longe, 96 Vt. 7, 10-12 (1922); State v. Goyet, 120 Vt. 12, 48 (1957). See generally 1 W. LaFave & A. Scott, Substantive Criminal Law 24 (1986).

82. State v. Goyet, 120 Vt. 12, 48 (1957); see also State v. Bushey, 148 Vt. 197, 199 (1987).