(1) Except as otherwise provided by statute, in criminal cases, presumptions against an accused, recognized at common law or created by statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt, are governed by this rule.

(2) The judge is not authorized to direct the jury to find a presumed fact against the accused. When the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge may submit the question of guilt or of the existence of the presumed fact to the jury, if, but only if, a reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find guilt or the presumed fact beyond a reasonable doubt. When the presumed fact has a lesser effect, its existence may be submitted to the jury if the basic facts are supported by substantial evidence, or are otherwise established, unless the evidence as a whole negatives the existence of the presumed fact.

(3) Whenever the existence of a presumed fact against the accused is submitted to the jury, the judge shall give an instruction that the law declares that the jury may regard the basic facts as sufficient evidence of the presumed fact but does not require it to do so. In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge shall instruct the jury that its existence must, on all the evidence, be proved beyond a reasonable doubt.

Annotations

When a trial court instructs a jury on an inference regarding a specific fact or set of facts, the instruction must specifically include a statement explaining to the jury that it may regard the basic facts as sufficient evidence of the inferred fact, but that it is not required to do so; the instruction must also explain that the existence of the inferred facts must, on all the evidence, be proved beyond a reasonable doubt. State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011).

References to "presumptions" in this section necessarily include "inferences." Instructions as to presumptions in criminal cases must conform to the requirements of this section. State v. Parks, 245 Neb. 205, 511 N.W.2d 774 (1994).

Under subsection (3) of this section, whenever the jury in a criminal trial is instructed as to the presumption of possession found in section 28-1212, the jury must also be instructed that it is not required to accept the presumption. State v. Stalder, 231 Neb. 896, 438 N.W.2d 498 (1989).