presumption

An inference in favor of a particular fact.

A presumption is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted. Van Wart v. Cook, Okl.App., 557 P.2d 1161, 1163.

A legal device which operates in the absence of other proof to require that certain inferences be drawn from the available evidence. Port Terminal & Warehousing Co. v. John S. James Co., D.C.Ga., 92 F.R.D. 100, 106.

A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action. A presumption is not evidence. A presumption is either conclusive or rebuttable1. Every rebuttable presumption is either

(a) a presumption affecting the burden of producing evidence or

(b) a presumption affecting the burden of proof. Calif.Evid.Code, No. 600.

In all civil actions and proceedings not otherwise provided for by Act of Congress or by the Federal Rules of Evidence, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. Federal Evidence Rule 301.

See also disputable presumption

- inference

- juris et de jure

- presumptive evidence

- prima facie

- raise a presumption.

Commercial law.

A presumption means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its non-existence. U.C.C. No. 1-201(31).

@ conclusive presumptions

A conclusive presumption is one in which proof of basic fact renders the existence of the presumed fact conclusive and irrebuttable. Such is created when a jury is charged that it must infer the presumed fact if certain predicate facts are established. People v. Sellers, 3 Dept, 109 A.D.2d 387, 492 N.Y.S.2d 127, 128.

Few in number and often statutory, the majority view is that a conclusive presumption is in reality a substantive rule of law, not a rule of evidence. An example of this type of presumption is the rule that a child under seven years of age is presumed to be incapable of committing a felony. The Federal Evidence Rules (301, 302) and most state rules of evidence are concerned only with rebuttable presumptions

Compare rebuttable presumption.

@ conflicting presumptions

See inconsistent presumptions.

@ inconsistent presumptions

If presumptions are inconsistent, the presumption applies that is founded upon weightier considerations of policy. If considerations of policy are of equal weight neither presumption applies. Uniform Rules of Evidence. Rule 301(b).

@ irrebuttable presumption

See conclusive presumptions.

@ mandatory presumption

See conclusive presumptions

@ permissive presumption

One which allows, but does not require, trier of fact to infer elemental fact from proof by prosecutor of basic one, and which places no burden of any kind on defendant. State v. Scott, 8 Ohio App.3d 1, 8 O.B.R. 1, 455 N.E.2d 1363, 1368

@ presumptions of fact

Such are presumptions which do not compel a finding of the presumed fact but which warrant one when the basic fact has been proved. The trend has been to reject the classifications of presumptions of "fact" and presumptions of "law".

See inference

@ presumptions of law

A presumption of law is one which, once the basic fact is proved and no evidence to the contrary has been introduced, compels a finding of the existence of the presumed fact. The presumption of law is rebuttable and in most cases the adversary introduces evidence designed to overcome it. The trend has been to reject the classifications of presumptions of "law" and presumptions of "fact."

@ procedural presumption

One which is rebuttable, which operates to require production of credible evidence to refute the presumption, after which the presumption disappears. Maryland Cas. Co. v. Williams, C.A.Miss., 377 F.2d 389, 394, 35 A.L.R.Sd 275.

@

- rebuttable presumption

@ statutory presumption

A presumption, either rebuttable or conclusive (rebuttable presumption or conclusive presumption), which is created by statute in contrast to a common law presumption; e.g. I.R.C. No. 6062 (individual's name on tax return is prima facie evidence of his authority to sign return)

@ presumption of death

A presumption which arises upon the disappearance and continued absence of a person from his customary location or home for an extended period of time, commonly 7 years, without any apparent reason for such absence. Magers v. Western & Southern Life Ins. Co., C.A.Mo., 335 S.W.2d 355

@ presumption of innocence

A hallowed principle of criminal law to the effect that the government has the burden of proving every element of a crime beyond a reasonable doubt and that the defendant has no burden to prove his innocence. It arises at the first stage of the criminal process but it is not a true presumption because the defendant is not required to come forward with proof of his innocence once evidence of guilt is introduced to avoid a directed verdict of guilty. Presumption of innocence succinctly conveys the principle that no person may be convicted of a crime unless the government carries the burden of proving his guilt beyond a reasonable doubt but it does not mean that no significance at all may be attached to the indictment. U. S. v. Friday, D.C.Mich., 404 F.Supp. 1343, 1346

@ presumption of legitimacy

Whenever it is established in an action that a child was born to a woman while she was the lawful wife of a specified man, the party asserting the illegitimacy of the child has the burden of producing evidence and the burden of persuading the trier of fact beyond reasonable doubt that the man was not the father of the child. Bernheimer v. First Natl. Bank, 359 Mo. 1119, 225 S.W.2d 745; Model Code of Evidence, Rule 703

@ presumption of survivorship

A presumption of fact, to the effect that one person survived another, applied for the purpose of determining a question of succession or similar matter, in a case where the two persons perished in the same catastrophe, and there are no circumstances extant to show which of them actually died first, except those on which the presumption is founded, viz., differences of age, sex, strength, or physical condition

@ presumption of validity

In patent law, the holder of a patent is entitled to a statutory presumption of validity. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 335, 338, 91 S.Ct. 1434, 1447, 28 L.Ed.2d 788. 35 U.S.C.A. No. 282

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