In the law of

evidence Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field. In epistemology, evidenc ...

, a presumption of a particular fact can be made without the aid of proof in some situations. The invocation of a presumption shifts the burden of proof from one party to the opposing party in a court trial. There are two types of presumption: ''

rebuttable presumption In common law and civil law, a rebuttable presumption (in Latin, ''praesumptio iuris tantum'') is an assumption made by a court that is taken to be true unless someone proves otherwise. For example, a defendant in a criminal case is presumed inn ...

'' and '' conclusive presumption''. A rebuttable presumption is assumed true until a person proves otherwise (for example the presumption of innocence). In contrast, a conclusive (or irrebuttable) presumption cannot be refuted in any case (such as defense of infancy in some legal systems). 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. An example of presumption without basic facts is presumption of innocence. An example of presumption ''with'' basic facts is Declared death in absentia, e.g., the law says if a person has been missing for seven years or more (basic fact), that person is presumed dead.

History

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 English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, be ...

in the seventeenth century by

Edward Coke Edward is an English given name. It is derived from the Anglo-Saxon name ''Ēadweard'', composed of the elements '' ēad'' "wealth, fortune; prosperous" and '' weard'' "guardian, protector”. History The name Edward was very popular in Anglo-Sa ...

Specific presumptions

A number of presumptions are found in most common law 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 sanity. A person who faces criminal trial is presumed sane until the opposite is proved. Similarly, a person is presumed to have testamentary capacity until there is evidence to undermine that presumption. *The presumption of innocence, which holds that the prosecution bears the burden of proof in a criminal case with the result that the accused may be acquitted without putting forward any evidence. *The presumption of legitimacy 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 separation Legal separation (sometimes judicial separation, separate maintenance, divorce ', or divorce from bed-and-board) is a legal process by which a married couple may formalize a separation while remaining legally married. A legal separation is gra ...

, or divorce. 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 account A joint account is a bank account that has been opened by two or more individuals or entities. Joint accounts are commonly opened by close relatives (such as by a married couple) or by business partners in an unincorporated business, but it can ...

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 carrier was in fact delivered and received by the addressee. *The presumption of

fraud In law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law (e.g., a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compens ...

or undue influence arises where a person in a position of trust over another, such as a

guardian Guardian usually refers to: * Legal guardian, a person with the authority and duty to care for the interests of another * ''The Guardian'', a British daily newspaper (The) Guardian(s) may also refer to: Places * Guardian, West Virginia, Unite ...

or the holder of a power of attorney applies the other person's assets to his or her own benefit. *The

presumption of validity The presumption of regularity is a presumption that forms part of the law of evidence of England and Wales. It is expressed by the Legal maxim, maxim of law ''omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium'', which may ...

is another way of expressing a burden of proof: the official acts of courts are presumed valid, and those who would challenge them must overcome this presumption. This is also termed the presumption of regularity. *The

presumption of advancement The presumption of advancement is a legal presumption which arises in various common law jurisdictions in relation to the transfers of money or other property. Broadly, the presumption states that where a husband transfers property to his wife, o ...

in relation to transfers from husbands to wives and from fathers to children. *In the law of the United States, the

presumption of constitutionality In constitutional law, the presumption of constitutionality is the legal principle that the judiciary should presume statutes enacted by the legislature to be constitutional, unless the law is clearly unconstitutional or a fundamental right is impl ...

presumes that all statutes are drafted in accordance with

Federal Federal or foederal (archaic) may refer to: Politics General *Federal monarchy, a federation of monarchies *Federation, or ''Federal state'' (federal system), a type of government characterized by both a central (federal) government and states or ...

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 choose the path that permits upholding the statute.''Boehm v. Town of St. John'', 675 N.E.2d 318 (Ind.1996)

History

Specific presumptions

See also

Notes and references

Further reading