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Court Discusses Prima Facie Evidence Provision


Respondents committed criminal acts of burning a cross and properties during a gathering. They were convicted of violating Virginia’s cross-burning statute, Sec. 18.2-423.

The statute provides:

“It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.

“Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.”

A New York Criminal Lawyer said that at the trial of one of the respondents, the jury was instructed that “intent to intimidate means the motivation to intentionally put a person or a group of persons in fear of bodily harm. Such fear must arise from the willful conduct of the accused rather than from some mere temperamental timidity of the victim.” The trial court also instructed the jury that “the burning of a cross by itself is sufficient evidence from which you may infer the required intent.” When the respondent objected to this last instruction on First Amendment grounds, the prosecutor responded that the instruction was “taken straight out of the [Virginia] Model Instructions.”

The Court concluded that the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form.

The prima facie evidence provision, as interpreted by the jury instruction, renders the statute unconstitutional. A New York Sex Crimes Lawyer said because this jury instruction is the Model Jury Instruction, and because the Supreme Court of Virginia had the opportunity to expressly disavow the jury instruction, the jury instruction’s construction of the prima facie provision “is a ruling on a question of state law that is as binding on us as though the precise words had been written into” the statute. E. g., Terminiello v. Chicago, 337 U. S. 1, 4 (1949) (striking down an ambiguous statute on facial grounds based upon the instruction given to the jury)

As construed by the jury instruction, the prima facie provision strips away the very reason why a State may ban cross burning with the intent to intimidate. The prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense. A Nassau County Sex Crimes Lawyer said and even where a defendant like Black presents a defense, the prima facie evidence provision makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case. The provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself.

It is apparent that the provision as so interpreted “`would create an unacceptable risk of the suppression of ideas.'” Secretary of State of Md. v. Joseph H. Munson Co., supra, at 965, n. 13 (quoting Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 797 (1984)). The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation. But that same act may mean only that the person is engaged in core political speech. A Queens Sex Crimes Lawyer said the prima facie evidence provision in this statute blurs the line between these two meanings of a burning cross. As interpreted by the jury instruction, the provision chills constitutionally protected political speech because of the possibility that the Commonwealth will prosecute — and potentially convict — somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect.

The prima facie provision makes no effort to distinguish among these different types of cross burnings. It does not distinguish between a cross burning done with the purpose of creating anger or resentment and a cross burning done with the purpose of threatening or intimidating a victim. It does not distinguish between a cross burning at a public rally or a cross burning on a neighbor’s lawn. It does not treat the cross burning directed at an individual differently from the cross burning directed at a group of like-minded believers. It allows a jury to treat a cross burning on the property of another with the owner’s acquiescence in the same manner as a cross burning on the property of another without the owner’s permission.

Stephen Bilkis and Associates with its New York Criminal Lawyers can provide you adequate assistance in invoking your Constitutional rights. Its offices are located within New York Metropolitan area, including Corona, New York.

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