5 - Presumptions & Inferences 301 Flashcards
301
Covers Rebuttable presumptions in civil cases only
Conclusive (irrebuttable) presumptions
- involve substantive rules of law -> beyond rules of evidence
Rebuttle presumptions
- NOT EVIDENCE -> is a procedural rule that defines the relationship between two facts - basic and presumed
- If basic fact is proved, the presumed fact must be accepted as established unless rebutted.
- Ex. if letter if properly addressed and mailed (basic facts), must be accepted that the letter was received (presumed fact), unless sufficient evidence is introduced to rebut the presumed fact
- A presumption is mandatory, the presumed fact must be accepted once the basic fact is established
Inference
- contrast to presumption
- involves a relationship between two facts - permissive
- ex. doctrine of res ipsa loquitour usually involves an inference of negligence. Establishment of the basic facts permits, but does not compel, a conclusion of negligence. BUT such a standardized inference does serve the purpose of satisfying a plaintiff’s burden of production on the issue of negligence
Other terms
Other labels to describe presumptions - ex. “mandatory inferences” and “presumptions of law”
Other labels to describe inferences - “permissive presumptions” and “presumptions of fact”
AVOID FOR CONFUSION
Prima Facie
- ambiguous
- most often used to descibe burden of production ex. a party that has made out a a “prima facie case” has satisfied its burden of prod and therefore, should not suffer a directed verdict
Rationale for presumptions
Created for -
1. Policy
2. Fairness (possession of evidence - one party’s greater access to info)
3. Probability (rough estimate of how the world generally functions)
^aka the 3 Ps
diff reasons underlie diff presumptions, and many times, several reasons may support a particular presumption
ex. presumption of due delivery of properly posted mail (mailbox rule) is based on probabilities (most letters are delivered) as well as the difficulty, on the part of the mailer, of proving receipt.
In contrast - ex. the presumption of undue influence when a lawyer is named a beneficiary under a will prepared by that lawyer is based on policy. Lawyers are fiduciaries - are supposed to assist client not take advantage
Principal Views on the Effect of Presumptions
- Thayer theory
2. Morgan thoery
Thayer Theory of Presumptions (aka bursting bubble)
Burden of production shifts - presumption shifts only the burden of production or going forward with the evidence; does not shift burden of persuasion. Thus, proof of the basic fact (ex. letter mailed) automatically establishes the presumed fact (ex. letter received) and shifts the burden of producing evidence that will rebut the presumed fact to the other party. If opposing failed to rebut the presumed fact, that party has failed to satisfy its burden of production and suffers a directed verdict on that issue. If case goes to jury, jury is instructed to find the presumed fat (letter received).
Rebuttal evidence proffered - if opposing party offers sufficient evidence to rebut the presumed fact, the presumption disappears — “bursts.”1 The presumption has performed its function of shifting the burden of production, and since that burden has been satisfied by the introduction of rebuttal evidence, no further function remains to be served. The burden of persuasion remains with the party to whom it was originally allocated.17 Again, there is no need to mention the presumption to the jury.18 Nevertheless, an inference often continues after rebuttal, and a jury may consider it in reaching a decision.
Quantum of rebuttal proof - “Courts and commentators are in general agreement that proffered evidence is ‘sufficient’ to rebut a presumption so long as the evidence could support a reasonable jury finding of ‘the nonexistence of the presumed fact.’”20 Yet, courts have used a variety of different standards to describe the quantum of proof needed to rebut a Thayer presumption. Some have required “substantial evidence” of the nonexistence of the presumed fact. Others have demanded that the nonexistence of the presumed fact be as probable as the existence of the presumed fact before the presumption is rebutted.21 Still others have required only a “scintilla” of evidence.
Basic fact controverted - If the opposing party introduces evidence challenging the basic fact (e.g., evidence that the letter was not mailed), the jury must decide whether the basic fact has been established. In such a case, the jurors should be instructed that if they find the basic fact, they must find the presumed fact. Although the basic fact presents a jury issue, the presumption remains mandatory once the jury finds the basic fact is established. Thus, the conditional instruction is required.
Morgan theory of presumptions
Burden of production shifts - As with Thayer’s theory, a Morgan presumption shifts the burden of production, and if the opponent fails to offer rebuttal evidence, a directed verdict results. Thus, initially, there is no difference between Thayer and Morgan.
Burden of persuasion shifts - The difference is that under the Morgan approach, a presumption shifts the burden of persuasion as well as the burden of production.22 Morgan argued that the Thayer theory failed to support adequately the reasons underlying the creation of presumptions. According to Morgan, if “a policy is strong enough to call a presumption into existence, it is hard to imagine it so weak as to be satisfied by the bare recital of words on the witness stand or the reception in evidence of a writing.”23 For example, the presumption of undue influence when a lawyer becomes a beneficiary under a will prepared by that lawyer is based on an important policy.24 This presumption should not simply disappear (“burst”) based on the lawyer’s testimonial assertion that no undue influence was involved. Under Morgan’s approach, the witness’s testimony would satisfy the burden of production (thereby creating a jury issue) but the burden of persuasion would rest with the opposing party (i.e., the lawyer). In short, a presumption under the Morgan theory has more “teeth.”
Under this theory, there is no need to mention the presumption in the jury instruction; the jury need only be instructed that the opposing party has the burden of persuading the jury (typically, by a preponderance of evidence) that the presumed fact is not true.25 Moreover, nothing prevents a jurisdiction from giving a Morgan presumption even more bite by making the standard of proof “clear and convincing” evidence.
301
- rejects the Morgan view
- essentially accepts the Thayer
Yet, the rule does not specify the standard for determining the sufficiency of rebuttal evidence. Under caselaw, the presumption is rebutted if sufficient evidence is introduced from which a reasonable jury could find the nonexistence of the presumed fact.32
Exceptions. Congress has the authority to adopt a Morgan presumption. For example, in Microsoft Corp. v. i4i Ltd. Partnership,33 the Supreme Court had to interpret a statutory presumption regarding the validity of a patent. The Court observed: “[B]y its express terms, § 282 establishes a presumption of patent validity, and it provides that a challenger must overcome that presumption to prevail on an invalidity defense. But, while the statute explicitly specifies the burden of proof, it includes no express articulation of the standard of proof.”34 Based on the legislative history, the Court concluded that the presumption of validity can be rebutted only by “clear and cogent evidence.” Note that this presumption shifts not only the burden of persuasion but elevates the requisite standard of proof.35
Conflicting Presumptions
2 presumptions may conflict. Under a pure Thayerian view, both presumptions would disappear if rebutted, and the evidence would be considered for its worth by the jury; often the basic fact would be circumstantial proof of the presumed fact. Another approach would look to the underlying rationale for the two presumptions, and the presumption with the stronger policy basis would trump the other. The Uniform Rules (1999) take this position.36
Choice of law
Federal Rule 302 provides: “In a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision.”37 The rule is important in federal courts because the Supreme Court has held that, under the doctrine of Erie R.R. Co. v. Tompkins,38 state law controls with respect to burdens of proof involving substantive elements of a claim or defense if state law determines the rule of decision.39
An analogous issue may arise in state courts when the cause of action is based on federal law — for example, a claim arising under the Federal Employers’ Liability Act.40 Uniform Rule 302(c) provides: “In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which federal law supplies the rule of decision is determined in accordance with federal law.”41 A similar “reverse Erie” issue arises with privileges.
Selected Presumptions
There are numerous presumptions. These are a sample:
Agency: (1) a vehicle identified by the name of the carrier on its side and operating on its regular route is presumed driven by an agent of the carrier acting within the scope of employment; (2) a driver of a car occupied by its owner is presumed an agent of the owner; and (3) an automobile driven by a servant is presumed operated within the scope of employment.
Bailments: (1) failure of a bailee to return property is presumed to be negligence; and (2) delivery of goods in good condition to a carrier and subsequent return in damaged condition is presumed to be negligence.
Competency: (1) presumption of continuing incompetency; and (2) presumption of incompetency arises after appointment of guardian.
Consent: a person driving an automobile is presumed to have the owner’s consent.
Continuation of condition: (1) once a condition is shown to exist, its continuance is presumed; (2) continuation of insanity after adjudication of “not guilty by reason of insanity”; (3) continuation of seaworthiness of a ship; (4) continuation of ownership of property; and (5) continuation of a contract.
Death: a person missing for seven years is presumed dead.
Legitimacy: (1) a child born during marriage is presumed to possess the right to inherit property through the father; (2) a child conceived during marriage is presumed legitimate; and (3) a man who marries a pregnant woman is presumed to be the father of the child.
Marriage: (1) presumption of continuation of marriage; (2) presumption of continuation of first marriage; (3) marriage, solemnized in due form, is presumed lawful; and (4) presumption that marital property includes all property acquired during marriage or assets produced or earned as a result of mutual effort by both parties.
Property: (1) a donee is presumed to have accepted a gift; (2) where title is put in the name of a member of the purchaser’s family, a gift is presumed; (3) where a document of title to real estate lists more than one person as owner, the parties are presumed to have equal shares; (4) possession raises presumption of ownership; and (5) the sale price is presumed to reflect the true value of property.
Suicide: death caused by violent external means is presumed accidental.
Wills: (1) a will drawn by an attorney, properly executed and attested, is presumed valid; and (2) where an attorney who drafts a will is named as a beneficiary, undue influence is presumed.
Criminal Presumptions Defined
Presumption of innocence. The presumption of innocence is not a true presumption; the accused is not required to prove any basic fact in order to trigger the presumption of innocence. Rather, the “presumption of innocence” is the traditional way of stating that the burden of persuasion lies with the prosecution.45
Presumption of sanity. Another example of confusing terminology is the so-called “presumption of sanity.” Again, this is not a true presumption; there is no basic fact that must be proved. The “presumption of sanity” merely allocates to the accused the initial burden of producing evidence of insanity. Commentators have argued that rules allocating burdens of proof, such as the presumptions of innocence and sanity, should be labeled “assumptions.”46 In the case of insanity, however, it makes more sense to simply treat it as an affirmative defense.47
Civil-criminal distinction. Even if “assumptions” are distinguished from presumptions, problems of terminology remain. Although the term “presumption” is used in both criminal and civil cases, a presumption operates differently in the criminal context than in a civil case. The difference arises from constitutional limitations on the allocation of the burden of proof.
The common law presumption concerning possession of recently stolen property illustrates this point. In a civil case, establishment of the basic fact (possession of recently stolen property) would automatically establish the presumed fact (the possessor stole the property), unless rebutted. The effect of the presumption would be to shift, at the very least, the burden of production to the opposing party. If that party failed to satisfy its burden of production, a directed verdict on that issue would follow. In a criminal case, however, an accused cannot constitutionally suffer a directed verdict.48
Thus, although the term presumption is often used in criminal cases, the effect of such a presumption generally is only that of an inference; the jury should be instructed only that it may find the inferred fact without any mention of the words “presume” or “presumption.”
