CHAP. 10PRESUMPTIONS

(AND PERMISSIBLE INFERENCES)

P. JANICKE

2012

2012 Chap. 10 -- Presumptions 2

TERMINOLOGY

• A PRESUMPTION IS A JUDGE-MANDATED CONCLUSION THAT THE JURY MUST REACH IF IT FINDS CERTAIN PREMISE FACTS AND THERE IS NO REBUTTAL EVIDENCE

2012 Chap. 10 -- Presumptions 3

• PROPERLY SPEAKING, PRESUMPTIONS ONLY EXIST IN CIVIL CASES

• HOWEVER, HISTORICAL DEVELOPMENT HAS MIXED UP THE LANGUAGE– TODAY WE SAY THERE ARE PRESUMPTIONS

IN CRIMINAL CASES, BUT THEIR EFFECT IS DIFFERENT

– THESE ARE ACTUALLY PERMISSIVE COMMENTS MADE TO THE JURY, RATHER THAN MANDATES

2012 Chap. 10 -- Presumptions 4

TERMINOLOGY

• UNLIKE A PRESUMPTION, A “PERMISSIVE INFERENCE” IS MERELY A NUDGE: – A CONCLUSION THAT THE JURY MAY

DRAW IF IT WISHES– JUDGE TELLS THEM THEY MAY DRAW

IT – BASED ON CASE PRECEDENTS :• PRIOR CASES HOLDING CERTAIN FACTS

SUFFICIENT TO SUPPORT A VERDICT

2012 Chap. 10 -- Presumptions 5

TRIGGER FACTS

• PRESUMPTIONS ARE BASED ON PREMISE FACTS, ALSO CALLED TRIGGER FACTS

• THE JUDGE TELLS THE JURY THAT IF THEY FIND FACT X AND FACT Y, THEY MUST (CRIMINAL: MAY) FIND FACT Z

• HE ONLY DOES THIS IF THERE IS NO EVIDENCE TENDING TO REBUT FACT Z

2012 Chap. 10 -- Presumptions 6

EXAMPLE OF CIVIL PRESUMPTION

• TRIGGER FACTS:1.MARRIAGE

2.CHILD BORN DURING THE MARRIAGE

• PRESUMED FACT:HUSBAND IS THE CHILD’S FATHER

• JUDGE WILL STATE THE PRESUMPTION IF THERE IS NO EVIDENCE TENDING TO REBUT HUSBAND’S PATERNITY

2012 Chap. 10 -- Presumptions 7

ANOTHER EXAMPLE OF CIVIL PRESUMPTION

• TRIGGER FACTS :1.WORK WAS DONE BY A CIVIL SERVANT

2.IN HER CAPACITY AS GOVERNMENT EMPLOYEE (RATHER THAN AS PRIVATE CITIZEN)

• PRESUMED FACT:WORK WAS DONE PROPERLY

• WILL BE STATED IF NO REBUTTAL

2012 Chap. 10 -- Presumptions 8

HOW THE CIVIL PRESUMPTION WORKS IN COURT

• THE PARTY CLAIMING THE BENEFIT OF THE PRESUMPTION ASKS FOR AN INSTRUCTION ABOUT IT

• THE JUDGE THEN EVALUATES ANY EVIDENCE IN THE RECORD CONTROVERTING THE PRESUMED FACT

2012 Chap. 10 -- Presumptions 9

• IF SUBSTANTIAL EV. CONTRA TO THE PRESUMED FACT IS IN THE RECORD (E.G., HUSBAND WAS NOT THE FATHER – DNA; NON-ACCESS; OTHER MEN) :

– PRESUMPTION VANISHES– JUDGE SAYS NOTHING– REFUSES THE INSTRUCTION– JURY DECIDES CASE IN THE USUAL

WAY

2012 Chap. 10 -- Presumptions 10

• IF CONFLICTING EVIDENCE ON THE TRIGGER FACTS:

– JUDGE INSTRUCTS CONDITIONALLY. E.G., “IF YOU FIND THERE WAS A MARRIAGE BETWEEN H AND Y, AND IF YOU FIND THAT THE CHILD WAS BORN DURING IT, YOU MUST FIND H WAS THE FATHER” [ASSUMING NO REBUTTAL]

2012 Chap. 10 -- Presumptions 11

HOW A PERMISSIBLE INFERENCE WORKS

• THE JUDGE SAYS AS PART OF THE FINAL CHARGE TO THE JURY: “IF YOU FIND X AND Y, YOU MAY CONCLUDE Z.”

2012 Chap. 10 -- Presumptions 12

• IF THERE IS NO EVIDENCE SUFFICIENT TO SUPPORT A FINDING ON THE PREMISE FACTS, THERE IS NO INFERENCE TO BE TALKED ABOUT

– CASE GOES TO THE JURY IN THE USUAL WAY

2012 Chap. 10 -- Presumptions 13

EXAMPLES OF PERMISSIVE INFERENCES

• TRIGGER: UNEXPLAINED POSSESSION OF STOLEN PROPERTY– INFERENCE: POSSESSOR STOLE IT

• TRIGGER: LEAVING RESTAURANT WITHOUT PAYING– INFERENCE: INTENTION TO EVADE PAYMENT

2012 Chap. 10 -- Presumptions 14

MINORITY VIEW ON PRESUMPTION’S EFFECT

• SHIFTS THE BURDEN TO THE PARTY AGAINST WHOM THE PRESUMPTION WORKS– JUDGE INFORMS THE JURY WHERE

THE BURDEN LIES– CONTROVERTING EVIDENCE DOES

NOT DESTROY THE PRESUMPTION

2012 Chap. 10 -- Presumptions 15

IN CRIMINAL CASES

• PRESUMPTIONS AND PERMISSIBLE INFERENCES ARE HANDLED IN THE SAME WAY:– IF PREMISE FACTS ARE RAISED BY

THE EVIDENCE, THE JUDGE SAYS IN THE FINAL INSTRUCTIONS: “IF YOU FIND X AND Y, YOU MAY CONCLUDE Z”