unconstitutional presumption in Utah

2014We must now consider the remainder of the instruction, as well as "consider a reasonable jury's understanding in the context of the jury instructions and the record as a whole." State v. Kelson, 2012 UT App 217, ¶ 21 , 284 P.3d 695 , cert. granted, 298 P.3d 69 (Utah 2013); see also State v. Johnson, 774 P.2d 1141, 1146 (Utah 1989) ("[JJury instructions are to be considered as a whole..."). "'Other instructions [and the record] might explain the particular infirm language to the extent that a reasonable jurly] could not have considered the charge to have ereated an unconstitutional presumption.

2014We must now consider the remainder of the instruction, as well as "consider a reasonable jury's understanding in the context of the jury instructions and the record as a whole." State v. Kelson, 2012 UT App 217, ¶ 21 , 284 P.3d 695 , cert. granted, 298 P.3d 69 (Utah 2013); see also State v. Johnson, 774 P.2d 1141, 1146 (Utah 1989) ("[JJury instructions are to be considered as a whole..."). "'Other instructions [and the record] might explain the particular infirm language to the extent that a reasonable jurly] could not have considered the charge to have ereated an unconstitutional presumption.

2014We must now consider the remainder of the instruction, as well as "consider a reasonable jury's understanding in the context of the jury instructions and the record as a whole." State v. Kelson, 2012 UT App 217, ¶ 21 , 284 P.3d 695 , cert. granted, 298 P.3d 69 (Utah 2013); see also State v. Johnson, 774 P.2d 1141, 1146 (Utah 1989) ("[JJury instructions are to be considered as a whole..."). "'Other instructions [and the record] might explain the particular infirm language to the extent that a reasonable jurly] could not have considered the charge to have ereated an unconstitutional presumption.

2014We must now consider the remainder of the instruction, as well as "consider a reasonable jury's understanding in the context of the jury instructions and the record as a whole." State v. Kelson, 2012 UT App 217, ¶ 21 , 284 P.3d 695 , cert. granted, 298 P.3d 69 (Utah 2013); see also State v. Johnson, 774 P.2d 1141, 1146 (Utah 1989) ("[JJury instructions are to be considered as a whole..."). "'Other instructions [and the record] might explain the particular infirm language to the extent that a reasonable jurly] could not have considered the charge to have ereated an unconstitutional presumption.

2014We must now consider the remainder of the instruction, as well as "consider a reasonable jury's understanding in the context of the jury instructions and the record as a whole." State v. Kelson, 2012 UT App 217, ¶ 21 , 284 P.3d 695 , cert. granted, 298 P.3d 69 (Utah 2013); see also State v. Johnson, 774 P.2d 1141, 1146 (Utah 1989) ("[JJury instructions are to be considered as a whole..."). "'Other instructions [and the record] might explain the particular infirm language to the extent that a reasonable jurly] could not have considered the charge to have ereated an unconstitutional presumption.

2012See McGuire, 502 U.S. at 72 , 112 S.Ct. 475 ('It is well established that the instruction 'may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record." (quoting Cupp v. Naughten, 414 U.S. 141, 147 , 94 S.Ct. 396 , 38 L.Ed.2d 368 (1973))). ¶ 22 "Other instructions [and the record] might explain the particular infirm language to the extent that a reasonable jurly] could not have considered the charge to have created an unconstitutional presumption." Franklin, 471 U.S. at 315 , 105 S.Ct. 1965 ; see also Estelle v. McGuire,

2012See McGuire, 502 U.S. at 72 , 112 S.Ct. 475 ('It is well established that the instruction 'may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record." (quoting Cupp v. Naughten, 414 U.S. 141, 147 , 94 S.Ct. 396 , 38 L.Ed.2d 368 (1973))). ¶ 22 "Other instructions [and the record] might explain the particular infirm language to the extent that a reasonable jurly] could not have considered the charge to have created an unconstitutional presumption." Franklin, 471 U.S. at 315 , 105 S.Ct. 1965 ; see also Estelle v. McGuire,

2012See McGuire, 502 U.S. at 72 , 112 S.Ct. 475 ('It is well established that the instruction 'may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record." (quoting Cupp v. Naughten, 414 U.S. 141, 147 , 94 S.Ct. 396 , 38 L.Ed.2d 368 (1973))). ¶ 22 "Other instructions [and the record] might explain the particular infirm language to the extent that a reasonable jurly] could not have considered the charge to have created an unconstitutional presumption." Franklin, 471 U.S. at 315 , 105 S.Ct. 1965 ; see also Estelle v. McGuire,

2012See McGuire, 502 U.S. at 72 , 112 S.Ct. 475 ('It is well established that the instruction 'may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record." (quoting Cupp v. Naughten, 414 U.S. 141, 147 , 94 S.Ct. 396 , 38 L.Ed.2d 368 (1973))). ¶ 22 "Other instructions [and the record] might explain the particular infirm language to the extent that a reasonable jurly] could not have considered the charge to have created an unconstitutional presumption." Franklin, 471 U.S. at 315 , 105 S.Ct. 1965 ; see also Estelle v. McGuire,

2001See Oppenheimer, 343 P.2d at 933 (declaring habeas penalty against judges an unconstitutional violation of separation of powers and noting that California statute had been amended to delete all reference to judges); see also Cal.Penal Code § 1505 (Deering 1992) (liability applies to "officer or person to whom a writ of habeas corpus is directed"); D.C.Code Ann. § 16-1904 (1997) (liability applies to "officer or other person to whom a writ of habeas corpus is directed"); Md.Code Ann., Cts. & Jud.