Post on 16-Dec-2015
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”