The landmark case of State v. Belcher held trial judges should not instruct jurors they can infer malice from the use of a deadly weapon when there is evidence that would negate or mitigate the charge of murder. Belcher, however, left open the possibility of trial judges instructing jurors they can infer malice from the use of a deadly weapon in some cases. Many trial judges continued using this instruction.
On July 31, 2019, in State v. Burdette, the South Carolina Supreme Court ruled trial judges should never, under any circumstances, instruct jurors they can infer malice from the use of a deadly weapon. The Court observed:
When the trial court tells the jury it may use evidence of the use of a deadly weapon to establish the existence of malice, a critical element of the charge of murder, the trial court has directly commented upon facts in evidence, elevated those facts, and emphasized them to the jury. Even telling the jury that it is to give evidence of the use of a deadly weapon only the weight the jury determines it should be given does not remove the taint of the trial court’s injection of its commentary upon that evidence. Such an instruction is no different than an instruction that the jury may use evidence of flight as evidence of guilt. A jury instruction that malice may be inferred from the use of a deadly weapon is an improper court-sponsored emphasis of a fact in evidence—that the deed was done with a deadly weapon—and it should no longer be permitted.
Prosecutors will still be able to argue the jurors can infer malice from the use of a deadly weapon, but they will no longer get an advantage from the trial judge’s instruction mirroring their argument. Burdette is part of our Supreme Court’s recent trend of forbidding instructions that can be viewed as the trial judge expressing an opinion on the facts.
In addition to murder cases, the prohibition of instructing jurors to infer malice from the use of a deadly weapon applies in attempted murder cases.