TTTBE #40: Early Answer for Patrons!
Added 2017-09-10 22:00:01 +0000 UTCFor the first time ever -- as you'll hear during Tuesday's show -- Thomas got the bar answer correct, and Andrew got it wrong.
(Andrew's in pretty good company here; friend of the show and practicing attorney Charone Frankel also got it wrong.)
So yes, that means the answer is "A" -- that the wording of the instruction could have been viewed as taking the presumption of innocence out of the hands of the jury. This question is, apparently, taken almost word-for-word from the Supreme Court's decision in Sandstrom v. Montana, 442 U.S. 510 (1979).
Andrew guessed "C" -- that the defendant could raise an argument to rebut the permissible inference created by the jury instruction. That's true, and, as we discuss tomorrow on the show, the law is, in fact, that you are presumed to intend the consequences that flow from your voluntary decision to get drunk. But apparently the Supreme Court felt that just having the right to raise this argument wasn't sufficient to preserve the presumption of innocence.
Thomas correctly identified "B" and "D" as poor answers; "B" ("Yes, because the wording in effect forces the defendant to be a witness against himself") isn't right because the issue here has nothing to do with the Fifth Amendment and self-incrimination, and "D" ("No, because the statement is only a presumption that the jury is free to ignore") is flat-out wrong because juries must apply presumptions when reaching their findings.
Congratulations are in order to Thomas, who has now gotten an amazing eight in a row correct and is currently at 23-for-40 (57.5%) overall!
