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Remember I told you about the demurrer that never loses? Well, it . . . um . . . lost

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by: Ryan • July 24, 2013 • no comments

In a previous post, I told you about a challenge to the crime of Obliterating the ID Marks on a Firearm, and that the challenge never lost, pretty much because every prosecutor who received the demurrer -- if they had enough time to think about it -- conceded it.

The problem with the statute defining the crime is that guilt required being the person who actually obliterated the serial number, but mere possession of such a firearm was "presumptive evidence" of guilt. Since it's well established that it is unconstitutional to presume an element of the crime against the defendant, we had no problem winning on this issue.

Today, the COA upheld the denial of an MJOA to the charge, in a case where the trial court relied on that presumption. But the COA did so by basically reading the phrase "presumptive evidence" as something other than a presumption. It turns out the legislature simply meant that possessing the firearm with the obliterated ID was something that could be considered when evaluating the evidence against the defendant, but it was not by itself enough to convict. Sorta if the legislature had said, "it is presumptive evidence of murder if the defendant was the last person to see the victim alive." Hey, we're not saying that's enough, but it's something you should consider when evaluating guilt!

The opinion is much more thoughtful than that, but it does read -- and even sorta tacitly admits -- that it's borrowing from an archaic definition of "presumptive evidence" in order to save the statute from constitutional infirmity. In sum, no presumption exists, just be aware of prosecutors who try to get a jury instruction based on "presumptive evidence," which would be a prohibited comment on the evidence, just like most every instruction prosecutors specially request.