Presumption
Encyclopedia
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." 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. Medieval Roman and canon law
graded presumptions according to strength: light, medium or probable, and violent. These gradings and many individual presumptions were taken over into English law
in the seventeenth century by Edward Coke
.
jurisdictions. Examples of these presumptions include:
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of evidence
Evidence
Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
, 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
Talmud
The Talmud is a central text of mainstream Judaism. It takes the form of a record of rabbinic discussions pertaining to Jewish law, ethics, philosophy, customs and history....
, 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." The same concept was found in ancient Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
, 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. Medieval Roman and canon law
Canon law
Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...
graded presumptions according to strength: light, medium or probable, and violent. These gradings and many individual presumptions were taken over into English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
in the seventeenth century by Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
.
- types: Rebuttable presumptionRebuttable presumptionBoth in common law and in civil law, a rebuttable presumption is an assumption made by a court, one that is taken to be true unless someone comes forward to contest it and prove otherwise. For example, a defendant in a criminal case is presumed innocent until proved guilty...
, Conclusive presumptionConclusive presumptionA conclusive presumption is a type of presumption used in several legal systems.-England and Wales:... - examples of presumption without basic facts: Presumption of innocencePresumption of innocenceThe presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...
- example of presumption with basic facts: Death in absentiaDeath in absentiaDeath in absentia is a legal declaration that a person is deceased in the absence of remains attributable to that person...
, e.g. law says if a person has been missing for 7 years or more (basic fact), that person shall be presumed to be dead.
Specific presumptions
A number of presumptions are found in most common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions. Examples of these presumptions include:
- The presumption of death. A person who has been absent for seven years without explanation and "gone to parts unknown" is presumed dead at common law. The time period it takes for the presumption to arise has often been modified by statute.
- The presumption of innocencePresumption of innocenceThe presumption of innocence, sometimes referred to by the Latin expression Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent until proven guilty. Application of this principle is a legal right of the accused in a criminal trial, recognised in many...
, which holds that the prosecution bears the burden of proof in a criminal case, and that the accused has no obligation to introduce evidence until the prosecution has made a prima faciePrima faciePrima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face", from the feminine form of primus and facies , both in the ablative case. It is used in modern legal English to signify that on first examination, a...
case. - The presumption of legitimacyPresumption of legitimacyThe presumption of legitimacy is a common law rule of evidence that states that a child born within the subsistence of a marriage is deemed to be the child of the husband.-Early history:...
or presumption of paternity, which presumes that a husband is the biological father of a child born to his wife during the marriage, or within nine months after the marriage is ended by death, legal separationLegal separationLegal separation is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order, which can be in the form of a legally binding consent decree...
, or divorceDivorceDivorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
. Some jurisdictions also hold that a presumption of paternity arises when a father accepts a child into his home, or publicly represents that he is the child's father. - A presumption of survivorship has referred to a number of different presumptions. The term is sometimes used to refer to presumptions that one or another of two persons lived the longer when they died together in the same accident. The presumption that two or more people who establish a joint accountJoint accountJoint account is a bank account shared by two or more individuals. Any individual who is a member of the joint account can withdraw from the account and deposit to it. Usually, joint accounts are shared between close relatives or business partners....
intend for the survivors to have the assets put into the fund upon the death of one of the joint account holders has also been called the "presumption of survivorship". - The presumption of mailing presumes that a properly addressed letter delivered to the post office or a common carrierCommon carrierA common carrier in common-law countries is a person or company that transports goods or people for any person or company and that is responsible for any possible loss of the goods during transport...
was in fact delivered and received by the addressee. - The presumption of fraudFraudIn criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
or undue influenceUndue influenceUndue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person. It is where free will to bargain is not possible.-Undue influence in contract law:...
arises where a person in a position of trust over another, such as a guardian or the holder of a power of attorneyPower of attorneyA power of attorney or letter of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter...
applies the other person's assets to his or her own benefit. - The presumption of validity is another way of expressing a burden of proof: the official acts of courts are presumed to be valid, and those who would challenge them must overcome this presumption. This is also termed the presumption of regularityPresumption of regularityThe presumption of regularity is a presumption that forms part of the law of evidence of England and Wales.It is expressed by the maxim of law "omnia praesumuntur rite et solemniter essa acta donec probetur in contrarium", which may be shortened to "omnia praesumuntur rite et solemniter essa acta"...
. - In the law of the United States, the presumption of constitutionalityPresumption of constitutionalityA presumption of constitutionality shifts the burden of proof from the government to the citizen, requiring them to prove that a statute is unconstitutional....
presumes that all statutes are drafted in accordance with Federal and state constitutional requirements. The party challenging the constitutionality of a statute bears the burden of proof, and any doubts are resolved against that party. If there are two reasonable interpretations of a statute, one of which is constitutional and the other not, the courts will choose the path which permits upholding the statute.