Lofton v. State

¶1(concurring). In its discussion of Lofton’s claim that the complaint failed to allege facts sufficient to show an intent to kill and that the evidence regarding intent produced in the preliminary hearing and at trial was insufficient to support the charge, the majority invokes the rules that “there is a presumption that one intends the natural and probable consequences of his acts” and that “in cases of first-degree murder, the fact that the defendant shot his victim in a vital part raises a presumption of intent.”

¶2The term “presumption” is used in many ways in the law. In the case at bar the court is using the word presumption to describe the process of reasoning that may lead the trier of fact to conclude that intent was present. For other cases using the presumption in a similar manner, see State v. McCarter, 36 Wis.2d 608, 612, 153 N.W.2d 527 (1967); Smith v. State, 69 Wis.2d 297, 305, 230 N.W.2d 858 (1975).

¶3The court is saying that a trier of fact logically and correctly may find the requisite intent from the defendant’s words or conduct, not because the law requires such a finding, but because jurors using ordinary reasoning may determine that the defendant’s words or conduct are inferentially probative of the requisite intent. Thus, in the instant case, we conclude that the evidence *491concerning Lofton’s words and behavior was sufficient to prove intent to kill beyond a reasonable doubt.

¶4The majority opinion should not be interpreted as approving “presumption language” which appears in a number of the Uniform Criminal Jury Instructions defining the element of intent.1 The language of Wis. J. I. —Criminal 1100, First Degree Murder, is typical:

*492“While this intent to kill must be found as a fact before you can find the defendant guilty of murder in the first degree, it must be found, if found at all, from his acts and his words and statements, if any, bearing upon his intent. You cannot look into a man’s mind to find out his intent. When there are no circumstances to prevent or rebut the presumption, the law presumes that a reasonable person intends all of the natural, probable, and usual consequences of his deliberate acts. If one person (assaults another violently with a dangerous weapon) (administers poison) likely to kill, and the person thus (assaulted) (poisoned) dies therefrom, then, when there are no circumstances to prevent or rebut the presumption, the legal and natural presumption is that death was intended.”2 (Emphasis added.)

¶5This Court has approved instructions which include the above “presumption language” in a number of cases, but its continued use is open to question.3 First, the language may not satisfy the requirements of sec. 903.03 *493(3), Wis. Rules of Evidence.4 Second, words such as “infer” and “presume,” which describe the jury’s reasoning process, may not be useful in telling the jury what it must do. “. . . [U] tterance of the quoted platitude does no useful purpose, since insofar as the statement has logical validity the jury would know it anyhow.”5

¶6Courts increasingly view the “presumption language” as confusing, unnecessary and prejudicial. The jury may be misled into believing the question before it is whether a reasonable person similarly situated would have had the requisite intent, rather than whether the defendant actually had the requisite intent. The language may be read as relieving the prosecution of the burden of proving each element of the offense beyond a reasonable doubt and shifting the burden to the defendant.6 If the instruction is construed as creating the impression that *494the defendant has the burden of persuasion to disprove an element of a crime, constitutional error may be claimed.7

¶7The majority opinion does not address the issue whether “presumption language” in an instruction on the element of intent is valid, and it should not be interpreted as approving such language.

¶8I have been authorized to state that Mr. Justice Hef-fernan and Mr. Justice Callow join in this concurring opinion.