1. CHAP. 10 PRESUMPTIONS (AND PERMISSIBLE INFERENCES) P. JANICKE 2012

2. Chap. 10 -- Presumptions2 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

3. 2012Chap. 10 -- Presumptions3 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

4. 2012Chap. 10 -- Presumptions4 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

5. 2012Chap. 10 -- Presumptions5 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

6. 2012Chap. 10 -- Presumptions6 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

7. 2012Chap. 10 -- Presumptions7 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

8. 2012Chap. 10 -- Presumptions8 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

9. 2012Chap. 10 -- Presumptions9 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

10. 2012Chap. 10 -- Presumptions10 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]

11. 2012Chap. 10 -- Presumptions11 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.”

12. 2012Chap. 10 -- Presumptions12 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

13. 2012Chap. 10 -- Presumptions13 EXAMPLES OF PERMISSIVE INFERENCES TRIGGER: UNEXPLAINED POSSESSION OF STOLEN PROPERTY –INFERENCE: POSSESSOR STOLE IT TRIGGER: LEAVING RESTAURANT WITHOUT PAYING –INFERENCE: INTENTION TO EVADE PAYMENT

14. 2012Chap. 10 -- Presumptions14 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

15. 2012Chap. 10 -- Presumptions15 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”