In a criminal prosecution, it frequently is necessary for a jury to make and rely upon inferences. How do we reconcile inferences--which are essentially guesses--with the rule that a defendant may only be convicted of a crime based upon proof beyond a reasonable doubt?
In Commonwealth v. Oliver (Massachusetts Appeals Court no. 22-P162) (May 15, 2023), we learn that the concepts are not well reconciled.
In Commonwealth v. Oliver the defendant, Dominique M. Oliver, was convicted of cashing a forged check. The Appeals Court described the facts as follows:
In January 2019 Ms. Oliver entered a branch of the Salem Five Cents Savings Bank and presented a check in the amount of $3,600 to the teller. The check was a Salem Five check on the account of Dr. Thomas Mahoney and his wife, Eileen Mahoney, and made out to Ms. Oliver. The check appeared to reflect Eileen’s signature. The signature was clear and legible, with each letter easily discernable. Eileen's name, however, was misspelled--the spelling did not match the printed name on the check. Ms. Oliver signed the back of the check and presented her genuine Massachusetts driver's license to the teller. The teller successfully withdrew the funds. Eileen testified that she did not write the check or know the defendant.
On appeal, Ms. Oliver contended that the evidence was insufficient to prove beyond a reasonable doubt that she knew the check to be forged.
The Appeals Court explained that to convict a defendant of cashing a forged check, each of the following four elements must be proved beyond a reasonable doubt: that the defendant (1) offered as authentic; (2) a check; (3) known to be forged; (4) with the intent to steal. Before the Appeals Court, Ms. Oliver challenged the third element, that is, that the scant evidence was sufficient to prove her knowledge the check was forged.
The Appeals Court began with a familiar refrain: “Circumstantial evidence is competent to establish guilt beyond a reasonable doubt.” Circumstantial evidence is evidence that leads to a conclusion. For instance, if you’re outside and it begins to rain, your perception of the rain is direct (rather than circumstantial) evidence that it rained at that moment. On the other hand, if you’re in the lobby of a building and people are walking in wearing rain gear and wet, you can use those circumstances to conclude that it is (or at least recently was) raining.
The Appeal Court acknowledged: “evidence that a defendant . . . cashed a check from a person who did not know the defendant and did not owe the defendant money[ ] is not sufficient to [conclude] beyond a reasonable doubt that the defendant knew the [check] was forged . . .” The question then is: what additional evidence was capable of proving Ms. Oliver knew the check to be forged?
The Appeals Court continued: “[T]he evidence of forgery was apparent from the face of the check. Eileen Mahoney’s name is misspelled in the signature line, and the misspelling is obvious because the name is spelled differently than in the printed name on the check . . . [T]he signature is neat and precise, and every letter can be read with ease. Because the forgery was [obvious] on the face of the check that the defendant presented, the jury could reasonably infer that she knew of the forgery.” * The Appeals Court added: “[T]he jury could reasonably infer that the defendant’s [cashing the check] to secure immediate possession of a large amount of cash supported the inference that she knew that the check was forged.”
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The Appeals Court explained:
To be sure, it is possible that a person could fail to notice that the signature on a check did not match the name on the check, even where the signature is as clear and legible as in this case . . . The jury, however, were not required to draw [such an] inference[. T]he inferences a jury may draw need only be reasonable and possible and need not be necessary or inescapable. Among those reasonable inferences is that a person looks at a check before cashing it, especially where, as here, the check was for a large amount.
In this case, as in every criminal case, the Commonwealth was required to prove Ms. Oliver’s state of mind “beyond a reasonable doubt.” In Massachusetts, proof beyond a reasonable doubt is proof (evidence) that establishes “an abiding conviction, to a moral certainty, that [a fact] is true . . . [I]t is the highest degree of certainty possible in matters relating to human affairs . . .”
In many check forgery cases the judge or jury can be confident that the checking account owner did not personally deliver the forged check to the defendant, and thus the defendant either him or herself wrote (forged) the check or received the check from someone other than the account owner. Depending upon the surrounding circumstances it is perhaps reasonable to conclude that a person cashing (as opposed to depositing) such a check knows the check to be inauthentic. This conclusion is foreclosed, however, by the general rule (discussed above) that cashing a forged check itself does not establish the defendant’s knowledge of the forgery. Thus, the Appeals Court engaged in some mental (and legal) gymnastics (discussed above) to conclude that evidence beyond the mere cashing of the forged check was available to prove--beyond a reasonable doubt--that Ms. Oliver knew the check to be forged.
Evaluating the reasoning of the Appeals Court, it is difficult to reconcile how a reasonable inference that results from the possibility that one “looked at a check” can lead to “the highest degree of certainty possible.” Even if it is reasonable to conclude that a “person looks at a check before cashing it,” according to the Appeals Court, looking at a check includes inspecting the signature with sufficient attention to detect a misspelling (which apparently even the bank teller did not do in this case).
On the reasoning of the Appeals Court, the trial jury, to find Ms. Oliver guilty, must have concluded (inferred) that Ms. Oliver was astute enough to detect a misspelling. But Ms. Oliver also provided her genuine identification--that would identify her to the authorities. Providing her identification is either inconsistent with Ms. Oliver otherwise being astute in the circumstances--meaning the misspelling inference is suspect--or Ms. Oliver was willing to be detected--a conclusion that would require wholesale speculation. In either case--an inconsistent inference or speculation--a defendant has been convicted, seemingly, on something less than proof beyond a reasonable doubt. Such appears to be prohibited: in the case of Commonwealth v. Niziolek, 380 Mass. 513, 522 (1980), the Massachusetts Supreme Judicial Court stated: “the jury . . . should not [make an adverse] infer[ence] [as to the existence of an element of a crime] unless they are persuaded of the truth of the inference beyond a reasonable doubt.”
In Commonwealth v. Oliver the Appeals Court appears to have permitted the jury to draw a damning inference without requiring the jury to consider whether the necessary underlying inferences (referred to as subsidiary inferences) are consistent or reasonable.
Our jurisprudence deserves better.
* Some might interpret the signature as correctly spelled: the first “L” in the misspelling actually being an “I” and everything preceding being an “E”.
