Criminal defendants are presumed innocent, so juries generally cannot be commanded to presume guilt from a set of circumstances and shift to the defendant the obligation to rebut that presumption. On the other hand, Virginia law does not prohibit trial judges from instructing juries on permissive inferences of culpability that can be made from the evidence. Lindsey v. Virginia, ___ Va. ___ (Jan. 19, 2017).

Consequently, a judge may not instruct a jury that mere presence in an automobile containing contraband presumes guilt, but a judge may instruct a jury that possession of recently stolen property permits an inference that the defendant stole said property.

James Lindsey was charged with third-time felony theft, and the judge told his jury through Instruction 16: “Willful concealment of goods or merchandise while still on the premises of a store is evidence of an intent to convert and defraud the owner of the value of the goods or merchandise, unless there is believable evidence to the contrary.” Lindsey

After reviewing the above instruction and remaining instructions to Lindsey’s jury, the Lindsey majority concluded that the foregoing instruction to his jury created a permissive inference of guilt rather than a rebuttable presumption of guilt.

The two dissenting justices in Lindsey have the better argument, including:

“Unlike prior cases in which an instruction was found to contain a permissive inference, Instruction 16 did not inform the jury that it was allowed to infer that the basic fact (concealment) was evidence of the elemental fact (intent), but rather informed the jury that it was required to infer that proof of concealment was evidence of intent. In this instance, the jury instruction did not permit the jury to weigh the evidence and use its judgment to determine whether to infer that proof of concealment was evidence of intent to convert and defraud; it required the jury to make that inference, unless there was evidence presented to the contrary. Thus, the inference was not permissive, but mandatory. According to the United States Supreme Court, such an instruction improperly shifts the Commonwealth’s burden of persuasion regarding whether, upon weighing the evidence, the jury believes willful concealment is evidence of intent to convert or defraud.”

Sometimes today’s good dissenting opinion sways a future court opinion. Hopefully that will be the case with Lindsey‘s dissent.