CHAP. 10 PRESUMPTIONS (AND PERMISSIBLE INFERENCES)

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

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

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 Chap. 10 -- Presumptions

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 Chap. 10 -- Presumptions

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 Chap. 10 -- Presumptions

EXAMPLE OF CIVIL PRESUMPTION • TRIGGER FACTS: • MARRIAGE • CHILD BORN DURING THE MARRIAGE • PRESUMED FACT: HUSBAND IS THE CHILD’S FATHER Chap. 10 -- Presumptions

EXAMPLE OF CIVIL PRESUMPTION • TRIGGER FACTS : • WORK WAS DONE BY A CIVIL SERVANT • IN HER CAPACITY AS GOVERNMENT EMPLOYEE (RATHER THAN AS PRIVATE CITIZEN) • PRESUMED FACT: WORK WAS DONE PROPERLY Chap. 10 -- Presumptions

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 Chap. 10 -- Presumptions

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 Chap. 10 -- Presumptions

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

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” Chap. 10 -- Presumptions

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 Chap. 10 -- Presumptions

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.” Chap. 10 -- Presumptions

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 Chap. 10 -- Presumptions

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

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 Chap. 10 -- Presumptions

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

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 Chap. 10 -- Presumptions

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

CHAP. 10 PRESUMPTIONS (AND PERMISSIBLE INFERENCES)