An Introduction to the Study of Presumptions

thing: "Presumptions are aids to reasoning and argumentation, which assume the truth of certain matters for the purpose of some 170. Laughlin, In Support of the Thayer Theory of Presumptions, 52 MIcH. L. Rtv. 195 (1953). 171. The proposed draft of the MISSOURI CoDE ov EVIDENC4, 1948, attempted this very thing. "Section 406. CONFLICTING PRESUMPTIONS. a. When conflicting presumptions of equal weight arise in relation to the same matter neither presumption shall be recognized. b. When one presumption is stronger than a contrary presumption the stronger presumption shall prevail as for example, but not exclusively, (1) the presumption of innocence shall prevail over all conflicting presumptions; (2) the presumption of legality of a last marriage shall prevail over any contrary presumptions that would tend to support the legality of the prior marriage; (3) a presumption of death of a person absent from home or from the state for seven years without being heard from shall prevail over the presumption of the continuance of a prior status,-life; and (4) the presumption of legitimacy of children shall prevail over the presumption of continuance of a prior marriage. COMMENTS In many cases conflicting presumptions of equal weight arise with regard to the same issue. In such situations the one presumption rebuts and neutralizes the other presumption, leaving the parties to their proof. The four situations recited in paragraph b. supra, are examples where one presumption is stronger than contrary presumptions, and are examples where such stronger presumptions prevail." UNIFORM RULES OF EVIDENCE rule 15 (1953) takes the same approach. It adopts the idea that when there are apparently conflicting presumptions the trial judge must apply the one "founded on the weightier considerations of policy and logic," but, if there is "no such preponderance both presumptions shall be disregarded." [VOL. 4: p. 475 482 8 Villanova Law Review, Vol. 4, Iss. 4 [1959], Art. 1 http://digitalcommons.law.villanova.edu/vlr/vol4/iss4/1 STUDY OF PRESUMPTIONS given inquiry. They may be grounded on general experience, or probability of any kind; or merely on policy and convenience. On whatever basis they rest, they operate in advance of argument or evidence, or irrespective of it, by taking something for granted; by assuming its existence. When the term is legitimately applied it designates a rule or proposition which still leaves open to further inquiry the matter thus assumed. The exact scope and operation of these prima facie assumptions are to cast upon the party against whom they operate, the duty of going forward, in argument or evidence, on the particular point to which they relate. They are thus closely related to the subject of judicial notice; for they furnish the basis of many of those spontaneous recognitions of particular facts or conditions Which make up that doctrine. Presumptions are not in themselves either argument or evidence, although for the time being they accomplish the result of both. It would be as true, and no more so, to say that an instance of judicial notice is evidence, as to say that a presumption is evidence. Presumption, assumption, taking for granted, are simply so many names for an act or process which aids and shortens inquiry and argument. These terms relate to the whole field of argument, whenever and by whomsoever conducted; and also to the whole field of the law, insofar as it has been shaped. or is being shaped by processes of reasoning. That is to say, the subject now in hand is one of universal application in the law, both as regards the subjects to which it relates and the persons who apply it." 172 Wigmore, on the other hand, while adopting Thayer's explanation of the mechanism of presumptions, was content to take a functional approach and explain the mechanism in terms of the burden of proof. 3 Alternatively, Judge Maxey suggested a rationale for the creation of presumptions and a division of presumptions into func-