Presumptions

Question 1

A presumption is

Answer 1

a rule that requires that a particular inference be drawn from an ascertained set of facts.

It is a form of substitute proof or evidentiary shortcut.

Proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption.

Question 2

Burden of Producing Evidence

Answer 2

Burden of “going forward” or burden of producing evidence. Placed on the plaintiff.

The party who has the burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case.

Once the party has satisfied the burden of going forward with evidence, it is incumbent upon the other side to come forward with evidence to rebut the accepted evidence.

Question 3

Burden of Persuasion (Proof)

Answer 3

Degree to which evidence must be proven.

Question 4

There are three levels to the burden of persuasion:

Answer 4

(1) Preponderance of the evidence - Civil Standard & certain issues in criminal (venue, voluntariness)
(2) Clear and convincing - Criminally related civil cases (fraud, validity of deed/will)
(3) Beyond a reasonable doubt - Criminal standard

Question 5

There are two main ways to shift a burden of production:

Answer 5

(1) Affirmative Defenses

(2) Presumptions

Question 6

“Bursting Bubble” theory:

Answer 6

Once the opponent presents sufficient evidence that the presumed fact is not true, then the presumption disappears from the case and the “bubble bursts”

Most presumptions are rebuttable.

Question 7

Presumptions in Criminal Cases

Answer 7

Rare and disfavored since if they are not rebutted, the result would be a judgment as a matter of law and would essentially violate due process