CHAP. 10 PRESUMPTIONS AND PERMISSIBLE INFERENCES

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CHAP. 10PRESUMPTIONS(AND PERMISSIBLE INFERENCES)

• P. JANICKE
• 2006

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TERMINOLOGY

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

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• 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

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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

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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

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EXAMPLE OF CIVIL PRESUMPTION

• TRIGGER FACTS
• MARRIAGE
• CHILD BORN DURING THE MARRIAGE
• PRESUMED FACT
• HUSBAND IS THE CHILDS FATHER

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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

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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

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• 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 gtgt

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• IF CONFLICTING EVIDENCE ON THE TRIGGER FACTS
• JUDGE INSTRUCTS CONDITIONALLY. E.G., IF YOU
  FIND THERE WAS A MARRIAGE BETWEEN H AND Y, AND
  CHILD WAS BORN DURING IT, YOU MUST FIND H WAS THE
  FATHER

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• IF NOT ENOUGH EVIDENCE ON TRIGGER FACTS TO
  SUPPORT A FINDING ON EACH (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

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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 X AND Y HAVE BEEN OVERWHELMINGLY PROVED, JUDGE
  SIMPLY SAYS I HAVE FOUND X AND Y YOU MAY
  CONCLUDE Z

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• 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

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EXAMPLES OF PERMISSIVE INFERENCES

• UNEXPLAINED POSSESSION OF STOLEN PROPERTY
• POSSESSOR STOLE IT
• LEAVING RESTAURANT WITHOUT PAYING
• INTENTION TO EVADE PAYMENT

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SOURCES OF PERMISSIVE INFERENCES JUDGMENTS IN
PRIOR REPORTED CASES

• EXAMPLE AN EARLIER CASE INVOLVED A JUDGMENT FOR
  PROS. WHERE THE ONLY EVIDENCE WAS POSSESSION AND
  NON-EXPLANATION JUDGMENT AFFIRMED
• FROM THEN ON, AN INFERENCE ARISES

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SOURCES OF PRESUMPTIONS

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

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MINORITY VIEW ON PRESUMPTIONS 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
• MAJORITY AND FEDERAL VIEW FORGET THE
  PRESUMPTION BURSTING BUBBLE

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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