Presumption

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In the law of evidence, a presumption of a particular fact can be made without the aid of proof in some situations. The types of presumption includes a rebuttable discretionary presumption, a rebuttable mandatory presumption, and an irrebuttable or conclusive presumption. The invocation of a presumption shifts the burden of proof from one party to the opposing party in a court trial. Presumptions are sometimes categorized into two types: presumptions without basic facts, and presumptions with basic facts. In the United States, mandatory presumptions are impermissible in criminal cases, but permissible presumptions are allowed.

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."[1] 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.[2] Medieval Roman and canon law graded presumptions according to strength: light, medium or probable, and violent.[3] These gradings and many individual presumptions were taken over into English law in the seventeenth century by Edward Coke.[4]

Specific presumptions[edit]

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

References[edit]

  1. ^ J. Franklin, The Science of Conjecture: Evidence and Probability Before Pascal (Baltimore: Johns Hopkins University Press, 2001), 6.
  2. ^ Franklin, Science of Conjecture, 9.
  3. ^ Franklin, Science of Conjecture, 20–23.
  4. ^ Franklin, Science of Conjecture, 60–61.
  5. ^ Technically, the presumption of innocence is not a presumption, but rather is a rhetorical expression emphasizing the fact the prosecution bears the burden of proof in a criminal case. The accused has no obligation to adduce evidence in his or her favor and will be automatically acquitted unless the prosecution surmounts its evidentiary threshold (the burden of proof, which in the United States is generally beyond a reasonable doubt in criminal cases). See presumption of innocence.
  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)