chap. 10 presumptions (and permissible inferences) p. janicke 2009

CHAP. 10PRESUMPTIONS

(AND PERMISSIBLE INFERENCES)

P. JANICKE

2009

2009 Chap. 10 -- Presumptions 2

TERMINOLOGY

• A PRESUMPTION IS A JUDGE-MANDATED CONCLUSION THAT THE JURY MUST REACH IF IT FINDS CERTAIN PREMISE FACTS


• 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


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


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


EXAMPLE OF CIVIL PRESUMPTION

• TRIGGER FACTS:1.MARRIAGE

2.CHILD BORN DURING THE MARRIAGE

• PRESUMED FACT:HUSBAND IS THE CHILD’S FATHER


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


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


• 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


• IF NO EVIDENCE TENDING TO NEGATE THE PRESUMED FACT IS IN THE RECORD:

– JUDGE MUST THEN EVALUATE THE EVIDENCE ON THE TRIGGER FACTS >>


• 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”


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


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.”


• 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


EXAMPLES OF PERMISSIVE INFERENCES

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

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


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


SOURCES OF PRESUMPTIONS

• SOME COME FROM PRIOR CASES, WHERE APPELLATE COURT ANNOUNCES THE PRESUMPTION

• MANY ARE STATUTORY


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


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”

chap. 10 presumptions (and permissible inferences) p. janicke 2009

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