Saturday, March 16, 2013


The same types of questions come up in Evidence time and again in the area of presumptions. An important point to note is that mandatory presumptions conflict with the presumption of innocence, and so will not be admitted in an Evidence question involving a criminal case.

The reason for not admitting such evidence is that in a criminal prosecution, the state must prove every element of the offense beyond a reasonable doubt. To mandate a presumption would relieve the prosecution of its burden to prove whatever fact had been presumed, and that would violate an accused's constitutional due-process rights.

In these types of questions, it's important to distinguish between the words "shall" and "may." The word shall (for example, a person who has been missing for seven years shall be presumed dead) indicates a mandatory presumption, which, for the reasons stated above, are disallowed in a criminal case. Note that these mandatory presumptions are unconstitutional even if they are rebuttable by the defendant.

It is not improper, however, for a judge in a criminal case to instruct the jury that it may infer that a person who has been missing for seven years is dead. These are discretionary presumptions. In a murder case, the state will still have to prove beyond a reasonable doubt that the victim has died, and the jury will have the option of presuming that fact based upon the fact that the victim has been missing for seven years. A requirement here is that there is a rational basis between the fact stated, and the fact to be presumed.

Finally, note that these same rules do not apply in a civil case. In a civil case, both mandatory and permissive presumptions are allowable, and will act to shift the burden of production to the party seeking to rebut or defeat the presumption.

**Need additional help learning Evidence? My resource MBE Essentials: Evidence contains the essential information tested in Evidence on the MBE.

Buy Now

No comments:

Post a Comment