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{{short description|Concept in law of evidence}}
{{short description|Concept in law of evidence}}
{{for|the term in Catholic canon law|Presumption (Catholic canon law)}}
{{for|the term in Catholic canon law|Presumption (Catholic canon law)}}
In [[law]], a '''presumption''' is an "inference of a particular fact".<ref name="Black's Law">{{cite encyclopedia |title=Presumption|encyclopedia=[[Black's Law Dictionary]]|year= 1990 |last=Black |first=Henry Campbell|author-link=Henry Campbell Black|url=https://blacks_law.en-academic.com/38069}}</ref> There are two types of presumptions: rebuttable presumptions and irrebuttable (or conclusive) presumptions.<ref>{{cite journal|url=https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2290&context=clr|first=Otis H.|last=Fisk|journal=The Cornell Law Quarterly|volume=11|pages=20-40|date=1925|title=Presumptions}}</ref>{{rp|25}} A rebuttable presumption will either shift the [[burden of production]] (requiring the disfavored party to produce some evidence to the contrary) or the [[burden of proof (law)|burden of proof]] (requiring the disadvantaged party to show the presumption is wrong);<ref name="Black's Law"/> in brief, a fact finder can reject a rebuttable presumption based on other evidence.<ref name="Rogus">{{cite journal|url=https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1040&context=mjgl|first=Caroline|last=Rogus|title=Fighting the Establishment: The Need for Procedural Reform of Our Paternity Laws|volume=21|date=2014|pages=67–122}}</ref>{{rp|87}} Conversely, a conclusive/irrebuttable presumption cannot be challenged by contradictory facts or evidence.<ref name="Rogus"/>{{rp|87–88}} Sometimes, a presumption must be triggered by a predicate fact—that is, the fact must be found before the presumption applies.<ref name="Hall">{{cite journal|first=Keith B.|last=Hall|journal=Tulane Law Review|url=https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1144&context=faculty_scholarship|title=Evidentiary Presumptions|pages=1321–28|volume=72|date=1998}}</ref>{{rp|1321–22}}
In [[law]], a '''presumption''' is an "inference of a particular fact".<ref name="Black's Law">{{cite encyclopedia |title=Presumption|encyclopedia=[[Black's Law Dictionary]]|year= 1990 |last=Black |first=Henry Campbell|author-link=Henry Campbell Black|url=https://blacks_law.en-academic.com/38069}}</ref> There are two types of presumptions: rebuttable presumptions and irrebuttable (or conclusive) presumptions.<ref>{{cite journal|url=https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2290&context=clr|first=Otis H.|last=Fisk|journal=The Cornell Law Quarterly|volume=11|pages=20-40|date=1925|title=Presumptions}}</ref>{{rp|25}} A rebuttable presumption will either shift the [[burden of production]] (requiring the disfavored party to produce some evidence to the contrary) or the [[burden of proof (law)|burden of proof]] (requiring the disadvantaged party to show the presumption is wrong);<ref name="Black's Law"/> in brief, a fact finder can reject a rebuttable presumption based on other evidence.<ref name="Rogus">{{cite journal|url=https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1040&context=mjgl|first=Caroline|last=Rogus|title=Fighting the Establishment: The Need for Procedural Reform of Our Paternity Laws|volume=21|date=2014|pages=67–122|journal=Michigan Journal of Gender & Law}}</ref>{{rp|87}} Conversely, a conclusive/irrebuttable presumption cannot be challenged by contradictory facts or evidence.<ref name="Rogus"/>{{rp|87–88}} Sometimes, a presumption must be triggered by a predicate fact—that is, the fact must be found before the presumption applies.<ref name="Hall">{{cite journal|first=Keith B.|last=Hall|journal=Tulane Law Review|url=https://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1144&context=faculty_scholarship|title=Evidentiary Presumptions|pages=1321–28|volume=72|date=1998}}</ref>{{rp|1321–22}}


==History==
==History==

Revision as of 15:49, 1 May 2023

For the term in Catholic canon law, see Presumption (Catholic canon law).

In law, a presumption is an "inference of a particular fact".[1] There are two types of presumptions: rebuttable presumptions and irrebuttable (or conclusive) presumptions.[2]: 25  A rebuttable presumption will either shift the burden of production (requiring the disfavored party to produce some evidence to the contrary) or the burden of proof (requiring the disadvantaged party to show the presumption is wrong);[1] in brief, a fact finder can reject a rebuttable presumption based on other evidence.[3]: 87  Conversely, a conclusive/irrebuttable presumption cannot be challenged by contradictory facts or evidence.[3]: 87–88  Sometimes, a presumption must be triggered by a predicate fact—that is, the fact must be found before the presumption applies.[4]: 1321–22 

History

The ancient Jewish law code, the Talmud, included reasoning from presumptions (hazakah), propositions taken to be true unless there was reason to believe otherwise, such as "One does not ordinarily pay a debt before term."[5]: 6 

The same concept was found in ancient Roman law, where, for example, if there was doubt as to whether a child was really the issue of someone who had left money in a will, the presumption was in favour of the child.[5]: 9  Medieval Roman and canon law graded presumptions according to strength: light, medium or probable, and violent.[5]: 20–23  These gradings and many individual presumptions were taken over into English law in the seventeenth century by Edward Coke.[5]: 60–61 

Specific presumptions

A number of presumptions are found in most common law jurisdictions. Examples of these presumptions include:

  • The presumption of death. A person who has been absent for seven years without explanation and "gone to parts unknown" is presumed dead at common law.[6] The time period it takes for the presumption to arise has often been modified by statute.[7]
  • The presumption of sanity. A person who faces criminal trial is presumed sane until the opposite is proved. Similarly, a person is presumed to have testamentary capacity until there is evidence to undermine that presumption.
  • The presumption of innocence, which holds that the prosecution bears the burden of proof in a criminal case with the result that the accused may be acquitted without putting forward any evidence.
  • The presumption of legitimacy or presumption of paternity, which presumes that a husband is the biological father of a child born to his wife during the marriage, or within nine months after the marriage is ended by death, legal separation, or divorce.[8] Some jurisdictions also hold that a presumption of paternity arises when a father accepts a child into his home, or publicly represents that he is the child's father.[9]
  • A presumption of survivorship has referred to a number of different presumptions. The term is sometimes used to refer to presumptions that one or another of two persons lived the longer when they died together in the same accident.[10] The presumption that two or more people who establish a joint account intend for the survivors to have the assets put into the fund upon the death of one of the joint account holders has also been called the "presumption of survivorship".[11]
  • The presumption of mailing presumes that a properly addressed letter delivered to the post office or a common carrier was in fact delivered and received by the addressee.[12]
  • The presumption of fraud or undue influence arises where a person in a position of trust over another, such as a guardian or the holder of a power of attorney applies the other person's assets to his or her own benefit.[13]
  • The presumption of validity is another way of expressing a burden of proof: the official acts of courts are presumed valid, and those who would challenge them must overcome this presumption.[14] This is also termed the presumption of regularity.[15]
  • The presumption of advancement in relation to transfers from husbands to wives and from fathers to children.
  • In the law of the United States, the presumption of constitutionality presumes that all statutes are drafted in accordance with Federal and state constitutional requirements. The party challenging the constitutionality of a statute bears the burden of proof, and any doubts are resolved against that party. If there are two reasonable interpretations of a statute, one of which is constitutional and the other not, the courts choose the path that permits upholding the statute.[16]

See also

Wikiquote has quotations related to Presumptions.

Notes and references

  1. ^ a b Black, Henry Campbell (1990). "Presumption". Black's Law Dictionary.
  2. ^ Fisk, Otis H. (1925). "Presumptions". The Cornell Law Quarterly. 11: 20–40.
  3. ^ a b Rogus, Caroline (2014). "Fighting the Establishment: The Need for Procedural Reform of Our Paternity Laws". Michigan Journal of Gender & Law. 21: 67–122.
  4. ^ Hall, Keith B. (1998). "Evidentiary Presumptions". Tulane Law Review. 72: 1321–28.
  5. ^ a b c d Franklin, J. (2001). The Science of Conjecture: Evidence and Probability Before Pascal. Baltimore: Johns Hopkins University Press.
  6. ^ Prudential Insurance Comp. v. Moore, 197 Ind. 50, 149 N.E. 718 (Ind. 1925)
  7. ^ E.g. Ind. Code § 29-2-5-1.
  8. ^ E.g. Ind. Code § 31-14-7-1.
  9. ^ E.g. Ind. Code § 31-14-7-2.
  10. ^ Black's Law Dictionary (5th. ed., 1979; West Publishing Co., ISBN 0-8299-2041-2), p. 1068, "Presumption of survivorship"
  11. ^ E.g. Matter of Estate of Banko, 622 N.E.2d 476 (Ind. 1993)
  12. ^ E.g. U-Haul Co. of Indiana, Inc. v. Indiana Dept. of State Revenue, 896 N.E.2d 1253 (Ind.Tax 2008)
  13. ^ In re Estate of Compton, 919 N.E.2d 1181, (Ind.Ct.App. 2010), trans. denied
  14. ^ Monon Corp. v. Townsend, Yosha, Cline & Price, 678 N.E.2d 807, 809 (Ind.Ct.App. 1997).
  15. ^ Cooper, Simon & Murphy, Peter & Beaumont, John. Cases & Materials on Evidence. Fourth Edition. Oxford University Press. 1994. p. 86
  16. ^ Boehm v. Town of St. John, 675 N.E.2d 318 (Ind.1996)

Further reading

  • John Hubbersty Mathews and Benjamin Rand. A Treatise on the Doctrine of Presumption and Presumptive Evidence: As Affecting the Title to Real and Personal Property. Gould, Banks and Company. New York. 1830. Google Books
  • William Mawdesley Best. A Treatise on Presumptions of Law and Fact, with the Theory and Rules of Presumptive or Circumstantial Proof in Criminal Cases. London. 1844. Google Books. Philadelphia. 1845. Google Books
  • John Davison Lawson. The Law of Presumptive Evidence: Including Presumptions both of Law and of Fact, and the Burden of Proof both in Civil and Criminal Cases, Reduced to Rules. Bancroft-Whitney Company. 1886. Google Books
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