Page:United States Reports 502 OCT. TERM 1991.pdf/237

 502us1$$7H 08-21-96 15:22:22 PAGES OPINPGT

Cite as: 502 U. S. 62 (1991)

79

Opinion of O’Connor, J.

of due process because the State still has the burden of persuading the jury that the suggested conclusion should be inferred based on the predicate facts proved. Ulster County Court v. Allen, 442 U. S. 140, 157–163 (1979). In this case, the instruction perhaps was intended to posit a permissive inference that whoever had inflicted Tori’s prior injuries was likely to have inflicted the injuries that caused her death. But the trial court did not make clear that the State first had to prove the predicate facts from which the inference was to be drawn. Furthermore, the wording of the instruction is such that the jury may well have assumed that it had no choice but to “logically conclud[e]” that McGuire was the murderer once it found a “clear connection” between the prior injuries and the fatal ones.* Because I cannot say with any confidence that the instruction allowed a mere permissive inference drawing from proven facts, I think the instruction should be treated as a mandatory presumption that may have relieved the State of its burden of proving the identity of Tori’s killer beyond a reasonable doubt. Had the instruction been clearly worded, I would agree with the Court that there is sufficient circumstantial evidence in the record to support a finding that McGuire was the perpetrator of the prior injuries. After all, as the Court points out, “[t]he proof of battered child syndrome itself narrowed the group of possible perpetrators to McGuire and his wife, because they were the only two people regularly caring for Tori.” Ante, at 74. In this case, however, it is important to remember that the other person regularly caring for Tori—Daisy McGuire—took the stand and testified, under a grant of immunity, that she was the one who inflicted the fatal injuries on the night of July 7, 1981. instructions on “evidence of other crimes” has since been revised to eliminate the phrase “so that it may be logically concluded.” See 1 California Jury Instructions, Criminal 2.50 (5th ed. 1987).
 * Although not dispositive, it is worth noting that California’s model jury