CHAP 10 PRESUMPTIONS AND PERMISSIBLE INFERENCES P JANICKE

CHAP. 10 PRESUMPTIONS (AND PERMISSIBLE INFERENCES) P. JANICKE 2011 Chap. 10 -- Presumptions

TERMINOLOGY • A PRESUMPTION IS A JUDGEMANDATED CONCLUSION THAT THE JURY MUST REACH IF IT FINDS CERTAIN PREMISE FACTS AND THERE IS NO REBUTTAL EVIDENCE 2011 Chap. 10 -- Presumptions 2

• 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 2011 Chap. 10 -- Presumptions 3

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 2011 Chap. 10 -- Presumptions 4

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 2011 Chap. 10 -- Presumptions 5

EXAMPLE OF CIVIL PRESUMPTION • TRIGGER FACTS: 1. MARRIAGE 2. CHILD BORN DURING THE MARRIAGE • PRESUMED FACT: HUSBAND IS THE CHILD’S FATHER • 2011 JUDGE WILL STATE THE PRESUMPTION IF THERE IS NO EVIDENCE TENDING TO REBUT HUSBAND’S PATERNITY Chap. 10 -- Presumptions 6

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 • 2011 WILL BE STATED IF NO REBUTTAL Chap. 10 -- Presumptions 7

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 2011 Chap. 10 -- Presumptions 8

• 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 2011 Chap. 10 -- Presumptions 9

• 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] 2011 Chap. 10 -- Presumptions 10

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. ” 2011 Chap. 10 -- Presumptions 11

• 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 2011 Chap. 10 -- Presumptions 12

EXAMPLES OF PERMISSIVE INFERENCES • TRIGGER: UNEXPLAINED POSSESSION OF STOLEN PROPERTY – INFERENCE: POSSESSOR STOLE IT • TRIGGER: LEAVING RESTAURANT WITHOUT PAYING – INFERENCE: INTENTION TO EVADE PAYMENT 2011 Chap. 10 -- Presumptions 13

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 2011 Chap. 10 -- Presumptions 14

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” 2011 Chap. 10 -- Presumptions 15