presumption


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Presumption

A conclusion made as to the existence or nonexistence of a fact that must be drawn from other evidence that is admitted and proven to be true. A Rule of Law.If certain facts are established, a judge or jury must assume another fact that the law recognizes as a logical conclusion from the proof that has been introduced. A presumption differs from an inference, which is a conclusion that a judge or jury may draw from the proof of certain facts if such facts would lead a reasonable person of average intelligence to reach the same conclusion.

A conclusive presumption is one in which the proof of certain facts makes the existence of the assumed fact beyond dispute. The presumption cannot be rebutted or contradicted by evidence to the contrary. For example, a child younger than seven is presumed to be incapable of committing a felony. There are very few conclusive presumptions because they are considered to be a substantive rule of law, as opposed to a rule of evidence.

A rebuttable presumption is one that can be disproved by evidence to the contrary. The Federal Rules of Evidence and most state rules are concerned only with rebuttable presumptions, not conclusive presumptions.

presumption

n. a rule of law which permits a court to assume a fact is true until such time as there is a preponderance (greater weight) of evidence which disproves or outweighs (rebuts) the presumption. Each presumption is based upon a particular set of apparent facts paired with established laws, logic, reasoning or individual rights. A presumption is rebuttable in that it can be refuted by factual evidence. One can present facts to persuade the judge that the presumption is not true. Examples: a child born of a husband and wife living together is presumed to be the natural child of the husband unless there is conclusive proof he is not; a person who has disappeared and not heard from for seven years is presumed to be dead, but the presumption could be rebutted if he/she is found alive; an accused person is presumed innocent until proven guilty. These are sometimes called rebuttable presumptions to distinguish them from absolute, conclusive or irrebuttable presumptions in which rules of law and logic dictate that there is no possible way the presumption can be disproved. However, if a fact is absolute it is not truly a presumption at all, but a certainty.

presumption

in the law of evidence, certain assumptions either of fact, judicial decision or statute that must be rebutted, that is, controverted by evidence, or the assumptions will stand as effective proof Presumptions in law include:
  1. (i) presumption in favour of life;
  2. (ii) presumption of ordinary physical condition;
  3. (iii) pater est quem nuptiae demonstrant, or ‘the husband of the woman who has a child is presumed to be the father’;
  4. (iv) presumption of innocence in criminal cases and against wrongful acts in civil matters; omnia praesumuntur rite et solemniter acta, or ‘a presumption in favour of regularity and validity’;
  5. (v) presumption from business, such as donatio non praesumunitur, ‘that against donation’.

Both England and Scotland presume death in certain cases. In England a person is presumed dead if he has not been heard of for seven years. In Scotland, the Presumption of Death (Scotland) Act 1977 provides that a person may be presumed dead if the court is satisfied that he has died or has not been known to be alive for a period of at least seven years.

Presumptions of fact are really no more than cases where it is reasonable and likely that a court will infer a state of affairs from other facts. Thus, a person in possession of recently stolen property may be presumed to be the thief, but this can be rebutted by showing that he had found them and was taking them to the nearest police station when apprehended. The maxim res ipsa loquitur (‘the happening speaks for itself), once treated as a matter of law, is no more than a very strong inference. If an accident happens, caused by something that is under the defender's control and in such a way that, if well operated, it should not have happened, then res ipsa loquitur ‘the incident is eloquent of negligence’.

PRESUMPTION, evidence. An inference as to the existence of one fact, from the existence of some other fact, founded on a previous experience of their connexion. 3 Stark. Ev. 1234; 1 Phil. Ev. 116; Gilb. Ev. 142; Poth. Tr. des. Ob. part. 4, c. 3, s. 2, n. 840. Or it, is an opinion, which circumstances, give rise to, relative to a matter of fact, which they are supposed to attend. Menthuel sur les Conventions, liv. 1, tit. 5.
     2. To constitute such a presumption, a previous experience of the connexion 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.
     3. 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. Menthuel sur les Conventions, tit. 5. See Domat, liv. 9, tit. 6 Dig. de probationibus et praesumptionibus.
     4. Presumptions are either legal and artificial, or natural.
     5.-1. 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. 4 Greenl. 270; 10 John. R. 338; 9 Cowen, R. 653; 2 McCord, R. 439; 4 Burr. 1963; Lofft, 320; 1 T. R. 271; 6 East, R. 215; 1 Campb. R. 29. An example of another nature is given under this head by the civilians. If a mother and her infant at the breast perish in the same conflagration, the law presumes that the mother survived, and that the infant perished first, on account of its weakness, and on this ground the succession belongs to the heirs of the mother. See Death, 9 to 14.
     6. 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.
     7.-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; 4 Burr. 2225; 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.
     8.-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, au 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.
     9.-2. Natural presumptions depend upon their own form and efficacy in generating belief or conviction on the mind, as derived from these connexions which are pointed out by experience; they are wholly independent of any artificial connexions 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.
     Vide, generally, Stark. Ev. h.t.; 1 Phil. Ev. 116; Civ. Code of Lo. 2263 to 2267; 17 Vin. Ab. 567; 12 Id. 124; 1 Supp. to Ves. jr. 37, 188, 489; 2 Id. 51, 223, 442; Bac. Ab. Evidence, H; Arch. Civ. Pl. 384; Toull. Dr. Civ. Fr. liv. 3, t. 3, o. 4, s. 3; Poth. Tr. des Obl. part 4, c. 3, s. 2; Matt. on Pres.; Gresl. Eq. Ev. pt. 3, c. 4, 363; 2 Poth. Ob. by Evans, 340; 3 Bouv. Inst. n. 3058, et seq.

References in periodicals archive ?
"So, that brings the final sentence down to say somewhere between 10 and 12 months, which is right into the teeth of the presumption."
Quick history: The Federal Court had in the drug trafficking case of Muhammed Hassan v Public Prosecutor (1998) found that the presumption of possession under Section 37(d) cannot be used to invoke the presumption of trafficking under Section 37(da) as it would be harsh and oppressive against the accused.
" Panelo, who is also Duterte's chief legal counsel, said that the Palace understands the principle of the presumption of innocence, but he believes the public's "right to know" about alleged drug-linked candidates takes precedence."We'd like to tell them that the Constitution gives people right to know matters of public concern, especially those that concern their lives and welfare," Panelo said.
Gary Alejano stressed that one's constitutional presumption of innocence 'is never waived by running for public office.'
class="MsoNormalHowever, different legal systems have had different applications of the "presumption of innocence".
"A proposal is also under development for reforms to implement the COAG agreement for a presumption against parole.
The petition states, 'in any trial punishable under the provisions of above mentioned law, the accused person in possession of assets/properties for which he cannot satisfactorily give account of asset and his assets or pecuniary resources disproportionate to his known resources of income, the court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and corrupt practices and his conviction shall not be invalid by the reason that it is solely based on presumption'.
The answer is found in the presumption created by the statute.
Soon after Congress passed the Cable Act, the FCC clarified that the cable providers carry the burden of proving they are not "subject to effective competition" if they wish to rebut the presumption that their rates can be regulated.
The presumption against extraterritoriality is a canon of statutory interpretation rooted in the "longstanding principle" that a federal statute "is meant to apply only within the territorial jurisdiction of the United States" absent congressional intent to the contrary.
First, courts have struggled with the question of whether the adequacy of state protection focuses on the efforts made by the state to protect, or on whether state action is effective in reducing the risk of persecution below the threshold of "reasonable chance." Second and more generally, the basic notion of a "presumption" of state protection has led lower courts to impose a significant burden on persons seeking recognition of refugee status.