Journal of Criminal Law and Criminology, Vol. 74, No. 2 (Summer 1983), pp. 363-390. Reprinted by special permission of Northwestern University School of Law, The Journal of Criminal Law and Criminology.


Within the past fifteen years several broadly-focused articles have identified general constitutional limits, under the due process clause, on presumptions and inferences created by statute or applied by courts in trying criminal cases. Recently, in County Court of Ulster County, New York v. Allen , the Supreme Court affirmed the validity of the evidentiary devices of inference and presumptions and labeled them "a staple of our adversary system of factfinding." This suggest that to unreasonably curtail the use of circumstantial evidence in the factfinding process would place an intolerable burden on prosecutors in their efforts to prove guilt beyond a reasonable doubt. Yet, notwithstanding the necessary evidentiary role for presumptions and inferences in the criminal justice process, the Court has acknowledged often-stated requirements of due process: persons accused of crimes must be presumed innocent and every element of a crime must be proven beyond a reasonable doubt.

This article will analyze approaches taken by various federal circuits in reviewing a microcosm of our criminal justice system -- aggravated bank robbery convictions -- first, by identifying the substantive criminal law issues; second, by surveying established due process analysis; and, finally, by relating that analysis to prosecutions under the Federal Bank Robbery Act.

The examination below of different judicial constructions of the aggravated offense subsection of the Federal Bank Robbery Act will reveal occasional circumvention of due process requirements through the application of permissive and conclusive presumptions. This Article will conclude, moreover, that the law interpreting this brief, relatively simple, and frequently litigated statutes is substantially unsettled and that, in this particular area of criminal justice, the constitutionally-mandated separation between the executive and judicial branches may be eroding. If, as Chief Justice Burger recently warned, our system of justice may literally break down within 20 years, the breakdown could be initiated by such a publicly-supported erosion.