Examples to Show How Different and Better Dean's Law Dictionary Has Become.

See also Presumption of law. See also inferences. See Mailbox rule. See also Rebuttable presumption or Presumption (conclusive or irrebuttable). See also Jury instructions. 


Presumptions normally arise when proof of one fact renders the existence of another fact 'so probable that it is sensible and timesaving to assume the truth of [the inferred] fact . . . until the adversary disproves it.' E. Cleary, McCormick on Evidence § 343, p. 969 (3d ed. 1984). 


A presumption is a rule of law that compels the fact finder to draw a certain conclusion or a certain inference from a given set of facts. In contrast, an inference, sometimes loosely referred to as a presumption of fact, does not compel a specific conclusion. An inference reached by probability and reasoning in the absence of absolute fact. A presumption of law is the required drawing of an inference from existing facts. The presumption may be rebuttable or conclusive. If rebuttable, facts may be presented to refute the presumption. If conclusive, no facts may be presented, as in estoppel. An inference merely applies to the rational potency or probative value of an evidentiary fact to which the fact finder may attach whatever force or weight it deems best. 9 J. Wigmore, Evidence in Trials at Common Law § 2491(1), at 304 (Chad. rev. 1981).] The primary significance of a presumption is that it operates to shift to the opposing party the burden of producing evidence tending to rebut the presumption. An inference, on the other hand, does not invoke this procedural consequence of shifting the burden of production. No presumption, however, can operate to shift the ultimate burden of persuasion from the party upon whom it was originally cast. 


 A presumption is a standardized practice under which certain facts are held to call for uniform treatment with respect to their effect as proof of other facts. McCormick on Evidence (2d Ed.), § 342, p. 802. The same authority suggests that 'presumption' is the slipperiest member of the family of legal terms, except its first cousin, 'burden of proof.' Reasons for the creation of presumptions are numerous and the treatment of presumptions also differs widely. There are at least eight senses in which the term has been used by courts. The former Nebraska approach to presumptions is ordinarily referred to as the 'bursting bubble' theory. Under that approach when evidence was introduced to rebut the presumption, the presumption disappeared and the burden of proof or persuasion did not shift. Under such a rule whether a particular set of basic facts gave rise to the dignity of a presumption was ordinarily not critical in the matter of instructing a jury after trial. What was many times referred to as a 'presumption' was often merely a permissible or probable inference, or was a method of indicating that the evidence was sufficient to withstand a motion for a directed verdict or to constitute a prima facie case. In terms of instructions to the jury the new rule poses far greater problems. An additional problem is posed in a case such as this because the presumed fact of undue influence is also the ultimate fact to be determined by the jury.


Ordinarily the basic facts which give rise to a true presumption are specific and definite. They can be readily determined and uniformly applied. 


A presumption is a deduction of fact which the law requires the trier of fact to draw from particular facts in evidence in the absence of sufficient contrary showing. There are conclusive presumptions and rebuttable presumptions. A presumption arises when the party seeking its benefit establishes the basic fact that is a condition to the presumed fact. All rebuttable presumptions have the effect of placing onto the opposing party the burden of going forward with the evidence (they shift the burden). In a minority of jurisdictions a rebuttable presumption is evidence, but in the majority it is not evidence; it is merely a deduction the trier of fact is required to draw from the evidence in the absence of a contrary showing. A conclusive presumption is not a presumption at all, but rather a definition of a rule of law. In the majority jurisdictions, the effect on the rebuttable presumption when contrary evidence is introduced is: Most courts: The presumption is dispelled ('bursting bubble' theory) and disappears from the case upon introduction of evidence sufficient to sustain a contrary finding (this is not a preponderance), i.e. the burden again shifts to where it was at the outset.


Some courts: A preponderance of evidence is required to shift the burden to where it was at the outset. In California and some other jurisdictions the effect of rebuttable presumptions are: Presumptions designed to implement public policy remain, and those not designed to implement public policy are dispelled. The first is known as a presumption affecting the burden of proof and the latter is known as a presumption affecting the burden of producing evidence. Examples of the first are that a person not heard from in seven years is dead, and that official duties have been regularly performed. Examples of the second are that a person owns what he possesses, and a letter duly mailed has been received in the ordinary course of the mail.


Under the common law: An inference as to the existence of one fact, from the existence of some other fact, founded on a previous experience of their connection. Or it, is an opinion, which circumstances, give rise to, relative to a matter of fact, which they are supposed to attend. To constitute such a presumption, a previous experience of the connection between the known and inferred facts is essential, of such a nature that as soon as the existence of the one is established, admitted or assumed, an inference as to the existence of the other arises, independently of any reasoning upon the subject. It follows that an inference may be certain or not certain, but merely, probable, and therefore capable of being rebutted by contrary proof. In general a presumption is more or less strong according as the fact presumed is a necessary, usual or infrequent consequence of the fact or facts seen, known, or proven.


When the fact inferred is the necessary consequence of the fact or facts known, the presumption amounts to a proof when it is the usual, but not invariable consequence, the presumption is weak; but when it is sometimes, although rarely, the consequence of the fact or facts known, the presumption is of no weight. Legal or artificial presumptions are such as derive from the law a technical or artificial, operation and effect, beyond their mere natural. tendency to produce belief, and operate uniformly, without applying the process of reasoning on which they are founded, to the circumstances of the particular case. For instance, at the expiration of twenty years, without payment of interest on a bond, or other acknowledgment of its existence, satisfaction is to be presumed; but if a single day less than twenty years has elapsed, the presumption of satisfaction from mere lapse of time, does not arise; this is evidently an artificial and arbitrary distinction.


Legal presumptions are of two kinds: first, such as are made by the law itself, or presumptions of mere law; secondly, such as are to be made by a jury, or presumptions of law and fact.


1st. Presumptions of mere law, are either absolute and conclusive; as, for instance, the presumption of law that a bond or other specialty was executed upon a good consideration, cannot be rebutted by evidence, so long as the instrument is not impeached for fraud or they are not absolute, and may be rebutted evidence; for example, the law presumes that a bill of exchange was accepted on a good consideration, but that presumption may be rebutted by proof to the contrary.


2d. Presumptions of law and fact are such artificial presumptions as are recognized and warranted by the law as the proper inferences to be made by juries under particular circumstances; for instance, an unqualified refusal to deliver up the goods on demand made by the owner, does not fall within any definition of a conversion, but inasmuch as the detention is attended with all the evils of a conversion to the owner, the law makes it, in its effects and consequences, equivalent to a conversion, by directing or advising the jury to infer a conversion from the facts of demand and refusal.


Natural presumptions depend upon their own form and efficacy in generating belief or conviction on the mind, as derived from these connections which are pointed out by experience; they are wholly independent of any artificial connections and relations, and differ from mere presumptions of law in this essential respect, that those depend, or rather are a branch of the particular system of jurisprudence to which they belong; but mere natural presumptions are derived wholly by means of the common experience of mankind, from the course of nature and the ordinary habits of society.


 - n. The act of presuming, or believing upon probable evidence; the act of assuming or taking for granted; belief upon incomplete proof. Ground for presuming; evidence probable, but not conclusive; strong probability; reasonable supposition; as, the presumption is that an event has taken place. That which is presumed or assumed; that which is supposed or believed to be real or true, on evidence that is probable but not conclusive. The act of venturing beyond due beyond due bounds; an overstepping of the bounds of reverence, respect, or courtesy; forward, overconfident, or arrogant opinion or conduct; presumptuousness; arrogance; effrontery. Conclusive presumption. See under Conclusive.


 - Presumption of fact (Law), an argument of a fact from a fact; an inference as to the existence of one fact not certainly known, from the existence of some other fact known or proved, founded on a previous experience of their connection; supposition of the truth or real existence of something, without direct or positive proof of the fact, but grounded on circumstantial or probable evidence which entitles it to belief.


 - Presumption of law (Law), a postulate applied in advance to all cases of a particular class; e. g., the presumption of innocence and of regularity of records. Such a presumption is rebuttable or irrebuttable.