1. CHAP. 10 PRESUMPTIONS (AND PERMISSIBLE INFERENCES) P. JANICKE 2009

2. Chap. 10 -- Presumptions2 TERMINOLOGY A PRESUMPTION IS A JUDGE- MANDATED CONCLUSION THAT THE JURY MUST REACH IF IT FINDS CERTAIN PREMISE FACTS

3. 2009Chap. 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. 2009Chap. 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. 2009Chap. 10 -- Presumptions5 TRIGGER FACTS PRESUMPTIONS ARE BASED ON PREMISES, CALLED TRIGGER FACTS THE JUDGE TELLS THE JURY THAT IF THEY FIND FACT X AND FACT Y, THEY MUST (CRIMINAL: MAY) FIND FACT Z

6. 2009Chap. 10 -- Presumptions6 EXAMPLE OF CIVIL PRESUMPTION TRIGGER FACTS: 1.MARRIAGE 2.CHILD BORN DURING THE MARRIAGE PRESUMED FACT: HUSBAND IS THE CHILD’S FATHER

7. 2009Chap. 10 -- Presumptions7 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

8. 2009Chap. 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. 2009Chap. 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. 2009Chap. 10 -- Presumptions10 IF NO EVIDENCE TENDING TO NEGATE THE PRESUMED FACT IS IN THE RECORD: –JUDGE MUST THEN EVALUATE THE EVIDENCE ON THE TRIGGER FACTS >>

11. 2009Chap. 10 -- Presumptions11 IF CONFLICTING EVIDENCE ON THE TRIGGER FACTS: –JUDGE INSTRUCTS CONDITIONALLY. E.G., “IF YOU FIND THERE WAS A MARRIAGE BETWEEN H AND Y, AND THAT THE CHILD WAS BORN DURING IT, YOU MUST FIND H WAS THE FATHER”

12. 2009Chap. 10 -- Presumptions12 3.IF NOT ENOUGH EVIDENCE ON TRIGGER FACTS TO SUPPORT A FINDING ON EACH (e.g., NO EV. OF MARRIAGE; or NO EV. OF BIRTH BEFORE DIVORCE DATE): –THERE IS NO PRESUMPTION –JUDGE REFUSES THE INSTRUCTION –CASE GOES TO THE JURY IN THE USUAL WAY

13. 2009Chap. 10 -- Presumptions13 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.”

14. 2009Chap. 10 -- Presumptions14 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

15. 2009Chap. 10 -- Presumptions15 EXAMPLES OF PERMISSIVE INFERENCES TRIGGER: UNEXPLAINED POSSESSION OF STOLEN PROPERTY –INFERENCE: POSSESSOR STOLE IT TRIGGER: LEAVING RESTAURANT WITHOUT PAYING –INFERENCE: INTENTION TO EVADE PAYMENT

16. 2009Chap. 10 -- Presumptions16 SOURCES OF PERMISSIVE INFERENCES: JUDGMENTS IN PRIOR REPORTED CASES EXAMPLE : AN EARLIER DRUG CASE INVOLVED A JUDGMENT FOR PROS. WHERE THE ONLY EVIDENCE WAS POSSESSION AND NON-EXPLANATION; JUDGMENT AFFIRMED FROM THEN ON, AN INFERENCE ARISES

17. 2009Chap. 10 -- Presumptions17 SOURCES OF PRESUMPTIONS SOME COME FROM PRIOR CASES, WHERE APPELLATE COURT ANNOUNCES THE PRESUMPTION MANY ARE STATUTORY

18. 2009Chap. 10 -- Presumptions18 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

19. 2009Chap. 10 -- Presumptions19 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”