Wis. Stat. » CHAPTER 903 — EVIDENCE — PRESUMPTIONS
Wisconsin Statutes

Wis. Stat. § 903.03 (2026)

Presumptions in criminal cases

✓ current as of July 2026
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903.03903.03 Presumptions in criminal cases.
903.03(1)(1) Scope. Except as otherwise provided by statute, in criminal cases, presumptions against an accused, recognized at common law or created by statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt, are governed by this rule.
903.03(2)(2) Submission to jury. The judge is not authorized to direct the jury to find a presumed fact against the accused. When the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge may submit the question of guilt or of the existence of the presumed fact to the jury, if, but only if, a reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find guilt or the presumed fact beyond a reasonable doubt. When the presumed fact has a lesser effect, its existence may be submitted to the jury if the basic facts are supported by substantial evidence, or are otherwise established, unless the evidence as a whole negatives the existence of the presumed fact.
903.03(3)(3) Instructing the jury. Whenever the existence of a presumed fact against the accused is submitted to the jury, the judge shall give an instruction that the law declares that the jury may regard the basic facts as sufficient evidence of the presumed fact but does not require it to do so. In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge shall instruct the jury that its existence must, on all the evidence, be proved beyond a reasonable doubt.
903.03 HistoryHistory: Sup. Ct. Order, 59 Wis. 2d R1, R56 (1973).
903.03 AnnotationA presumption in a criminal case is constitutionally impermissible if: 1) it shifts the burden of persuasion to the defendant; 2) it relieves the state of its burden of proving every element of the crime and negating every defense; or 3) it relieves the jury of its duty to find every element of the crime from its independent consideration of the evidence. Genova v. State, 91 Wis. 2d 595, 283 N.W.2d 483 (Ct. App. 1979).
903.03 AnnotationInstructions on intent created a permissible mandatory rebuttable presumption that shifted the burden of production to the defendant, but not the burden of persuasion. Muller v. State, 94 Wis. 2d 450, 289 N.W.2d 570 (1980).
903.03 AnnotationA jury instruction that placed the burden of proving lack of intent to kill upon the accused was improper. State v. Schulz, 102 Wis. 2d 423, 307 N.W.2d 151 (1981).
903.03 AnnotationA court properly instructed a jury that it could infer from a breathalyzer reading of .13 percent that the defendant was intoxicated. Alcohol absorption rates are discussed. State v. Vick, 104 Wis. 2d 678, 312 N.W.2d 489 (1981).
903.03 AnnotationAn instruction on the intoxication defense did not shift the burden of proof to the defendant. State v. Hedstrom, 108 Wis. 2d 532, 322 N.W.2d 513 (Ct. App. 1982).
903.03 AnnotationJury instructions on the intoxication defense, viewed as a whole, did not impermissibly shift the burden of persuasion on the issue of intent to the defendant. Barrera v. State, 109 Wis. 2d 324, 325 N.W.2d 722 (1982).
903.03 AnnotationBecause driving while intoxicated is inherently dangerous, the state need not prove a causal connection between the driver’s intoxication and the victim’s death. State v. Caibaiosai, 122 Wis. 2d 587, 363 N.W.2d 574 (1985).
903.03 AnnotationAn instruction that required the jury to find that the defendant had committed an element of the charged crime violated sub. (3) and was not harmless error. State v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222 (1985).
903.03 AnnotationIf an element has been conceded by the defendant, error may be harmless. State v. Zelenka, 130 Wis. 2d 34, 387 N.W.2d 55 (1986).
903.03 AnnotationA defendant has a burden of production to come forward with some evidence of a negative defense to warrant jury consideration. State v. Pettit, 171 Wis. 2d 627, 492 N.W.2d 633 (Ct. App. 1992).
903.03 AnnotationUnder Dyess both directed factual and legal findings are impermissible. State v. Jensen, 2007 WI App 256, 306 Wis. 2d 572, 743 N.W.2d 468, 06-2095.
903.03 AnnotationIn a case in which intent is an element of the crime charged, a jury instruction stating that, “the law presumes that a person intends the ordinary consequences of his voluntary acts,” unconstitutionally relieves the state from proving every element. Sandstrom v. Montana, 442 U.S. 510 (1979).
903.03 AnnotationThe harmless error rule may apply in cases involving a Sandstrom violation. Rose v. Clark, 478 U.S. 570 (1986).
903.03 AnnotationA prosecutor’s argument to the jury that a “man intends natural and probable consequences of his intentional acts” did not prejudice the accused. Mattes v. Gagnon, 700 F.2d 1096 (1983).
903.03 AnnotationA permissive intent instruction was rational as an aid to the jury in weighing circumstantial evidence of intent. Lampkins v. Gagnon, 710 F.2d 374 (1983).
903.03 AnnotationPresumptive intent jury instructions after Sandstrom. 1980 WLR 366.
903.03 AnnotationAfter Sandstrom: The constitutionality of presumptions that shift the burden of production. 1981 WLR 519.
903.03 AnnotationRestricting the admission of psychiatric testimony on a defendant’s mental state: Wisconsin’s Steel curtain. 1981 WLR 733.
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Notes of Decisions
Cited in 13 cases (1 in the last 5 years), 1979–2024 · leading case: State v. Dyess, 370 N.W.2d 222 (Wis. 1985).
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State v. Dyess, 370 N.W.2d 222 (Wis. 1985). · cites it 36× “" *535 The state argues that Dyess waived his objection on sec. 903.03, Stats., grounds by his failure to specifically refer to that rule when objecting to the instructions at trial.”
State v. Harvey, 2002 WI 93 (Wis. 2002). · cites it 8× “Wis. Stat. § 903.03 (emphasis added). ¶ 31.”
State v. Schultz, 2007 WI App 257 (Wis. Ct. App. 2007). · cites it 25× “She asserts that the instruction violated Wis. Stat. § 903.03 (3) because it contained mandatory conclusive presumptions and the trial court failed to instruct the jury in the manner required by § 903.”
Genova v. State, 283 N.W.2d 483 (Wis. Ct. App. 1979). · cites it 6× “The phenomenon is evident in sec. 903.03, Stats., which continues the semantically incorrect and inappropriate use of the word “presumption” in connection with the title to sec.”
State v. Kutz, 2003 WI App 205 (Wis. Ct. App. 2003). · cites it 2× “c) Excited utterance, Wis. Stat. § 903.03 (2) ¶ 64. The State contends that one of the six statements — to Sandra Bobholz that Daniel said she (Elizabeth) would never live to see her kids grow up and that they could bury them all on the hill — was an excited utterance under Wis.”
State v. Jensen, 2007 WI App 256 (Wis. Ct. App. 2007). · cites it 24× “Jensen asserts that the modified instruction violated Wis. Stat. § 903.03 (3) because it contained an impermissible mandatory conclusive presumption and the trial court failed to instruct the jury in the manner required by § 903.”
State v. McGuire, 2007 WI App 139 (Wis. Ct. App. 2007). · cites it 4× “In a criminal trial involving a recognized presumption a jury would have to be instructed that: (1) the law presumes the fact alleged; (2) the presumption is rebuttable; (3) the rebuttal may be "circumstantial" (direct or circumstantial evidence); and (4) the presumed fact and…”
State v. Kemp, 318 N.W.2d 13 (Wis. 1982). · cites it 3× “First: Did the trial court err in not instructing the jury pursuant to sec. 903.03(3), Stats. 1979-80, 1 that the state was claiming the benefit of a presumption and that the jury was not required to regard the basic fact (mailing of notice of driver’s license suspension) as…”
Hlad v. State, 565 So. 2d 762 (Fla. 5th DCA 1990). “302; Nev. Stat. § 47.230 (1973); N.M.R. Evid.”
State v. Harvey, 2001 WI App 59 (Wis. Ct. App. 2001). “§ 903.03(3). We agree with the State that, because a criminal defendant's right to trial by jury extends only to contestable issues of fact, the taking of judicial notice of an incontestable fact does not violate that right.”
State v. Schleusner, 454 N.W.2d 51 (Wis. Ct. App. 1990). “See sec. 903.03(3), Stats. (1985-86). We conclude that no reasonable jury could have misinterpreted the instruction.”
State v. Phyllis M. Schwersenska (Wis. Ct. App. 2020). “§ 903.03(2) (“When the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge may submit the question of guilt or of the existence of the presumed fact to the jury, if, but only if, a reasonable juror on the evidence as a whole,…”
Show all 13 citing cases →
— Wis. Stat. § 903.03(1) — 2 cases
State v. Schultz, 2007 WI App 257 (Wis. Ct. App. 2007). “She asserts that the instruction violated Wis. Stat. § 903.03 (3) because it contained mandatory conclusive presumptions and the trial court failed to instruct the jury in the manner required by § 903.”
State v. Jensen, 2007 WI App 256 (Wis. Ct. App. 2007). “Jensen asserts that the modified instruction violated Wis. Stat. § 903.03 (3) because it contained an impermissible mandatory conclusive presumption and the trial court failed to instruct the jury in the manner required by § 903.”
— Wis. Stat. § 903.03(2) — 3 cases
State v. Schultz, 2007 WI App 257 (Wis. Ct. App. 2007). “She asserts that the instruction violated Wis. Stat. § 903.03 (3) because it contained mandatory conclusive presumptions and the trial court failed to instruct the jury in the manner required by § 903.”
State v. Phyllis M. Schwersenska (Wis. Ct. App. 2020). “§ 903.03(2) (“When the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge may submit the question of guilt or of the existence of the presumed fact to the jury, if, but only if, a reasonable juror on the evidence as a whole,…”
State v. Corey Lamont Jackson (Wis. Ct. App. 2024).
— Wis. Stat. § 903.03(3) — 7 cases
State v. Dyess, 370 N.W.2d 222 (Wis. 1985). “" *535 The state argues that Dyess waived his objection on sec. 903.03, Stats., grounds by his failure to specifically refer to that rule when objecting to the instructions at trial.”
Genova v. State, 283 N.W.2d 483 (Wis. Ct. App. 1979). “The phenomenon is evident in sec. 903.03, Stats., which continues the semantically incorrect and inappropriate use of the word “presumption” in connection with the title to sec.”
State v. Kemp, 318 N.W.2d 13 (Wis. 1982). “First: Did the trial court err in not instructing the jury pursuant to sec. 903.03(3), Stats. 1979-80, 1 that the state was claiming the benefit of a presumption and that the jury was not required to regard the basic fact (mailing of notice of driver’s license suspension) as…”
State v. Schultz, 2007 WI App 257 (Wis. Ct. App. 2007). “She asserts that the instruction violated Wis. Stat. § 903.03 (3) because it contained mandatory conclusive presumptions and the trial court failed to instruct the jury in the manner required by § 903.”
State v. Jensen, 2007 WI App 256 (Wis. Ct. App. 2007). “Jensen asserts that the modified instruction violated Wis. Stat. § 903.03 (3) because it contained an impermissible mandatory conclusive presumption and the trial court failed to instruct the jury in the manner required by § 903.”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.