NCJ Number
166141
Journal
Illinois Bar Journal Volume: 84 Issue: 10 Dated: (October 1996) Pages: 514-517,528
Date Published
1996
Length
5 pages
Annotation
This article critiques Illinois' common law regarding the inference of guilt of burglary based on the exclusive and unexplained possession of recently stolen property.
Abstract
Every year, dozens of citizens are convicted of burglary even though the State fails to prove each of the statutory elements of the crime beyond a reasonable doubt. They are convicted under the common law permissive inference of guilt of burglary because of the exclusive and unexplained possession of recently stolen property. Although the inference is part of no Illinois statute and juries are no longer instructed about it, it remains the foundation for felony convictions for many individuals. Notwithstanding court holdings that the inference in Illinois does not offend due process, use of the inference in its present form increases the possibility of conviction of burglary without the State having proved the elements of that crime beyond a reasonable doubt. The just thing to do would be to eliminate all use of the inference; however, jurisdictions that continue to use it should adopt the Cosby test. This would constitute an extension of the current Housby standard and would provide adequate safeguards now missing. This involves a five-factor test for use in examining the sufficiency of evidence premised on the permissive inference. The Cosby test considers whether the possession was close in time to the crime, whether a large majority of the stolen goods was found in the defendant's possession, whether the defendant attempted to conceal the items, the plausibility of any explanation given by the defendant, and whether there was any corroborating evidence to support the inference. 55 footnotes