Presumptions

Author(s): Victor H. Lane

Source: Michigan Law Review, Vol. 22, No. 3 (Jan., 1924), pp. 207-214
Published by: The Michigan Law Review Association
Stable URL: http://www.jstor.org/stable/1277427
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 207

PRESUMPTIONS

BY VICTOR H. LANE*

P ERSISTENT controversial discussions furnish evidence that

there are still uncertainties as to some phases of the nature a
well as the law of presumptions. We have recently come muc
nearer to a common understanding in this field, due to most carefu
and thoughtful discussions of this subject by such masters of it
Thayer and Wigmore and Chamberlayne. It is less with the hope
of adding significantly new matter than with the belief that eve
that which smacks of reiteration may still assist in drawing attention
which, once aroused, may ultimately dispel the fog, that this brie
discussion of the nature of certain presumptions is undertaken. Th
continual dropping of the water wears the stone away.
The term "presumption" finds its place in the expression of lega
concepts as the result of common experience with things and men
Observation has taught us that we have like results when we have
like causes operating under like conditions. The same experienc
well leads us to conclude that like causes have been operating
under like conditions we get like results.
In dealing with things inanimate, if conditions are identical the
conclusion is absolute. In dealing with men the conclusion may be
less certain due to the fact that particular individuals may will tha
what we expect shall not occur. And too, it is much more difficult
with men to approach so closely that similarity of conditions whic
may be found in inanimate nature, due to those certain recognizabl
differences in men which persist notwithstanding their great fund
mental, natural and characteristic likenesses. But despite the power
of the individual to defeat the expected, it is true that men in gen
eral react with great likeness to like conditions. Hungry men usuall
eat if food is available and is good, and yet one may not if he so
will. Our whole penal system is built on the fundamental idea tha
men generally are alike in their reactions to particular condition
that they would rather keep money or spend it otherwise than in the
payment of fines; that they prefer physical liberty to physical re
straint; to live rather than to be hung; to eat, drink and be merry
the electrocutionist's chair.

*Professor of Law, University of Michigan.

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208 MICHIGAN LAW REVIEW

It is not strange then that the law should, operating in

take cognizance of this common experience. The chemist
and does not require daily demonstration, that if he com
parts of hydrogen with one of oxygen he will get water
ornythologist requires no new demonstration for his concl
the mating of robins means more robins and not more turtles

Crusoe saw the track in the sand and concluded a fact.

ence had taught him not only that boisterous seas bring new e
ment, but that such tracks were not made by sun or moon
are continuously concluding that if the shoe of defendant
the track under the window, and the broken blade of the kni
there fits as well to that portion found in the pocket of the p
it was probably he who broke and entered at the window,
though the law has no rule requiring such conclusion.
clusion results from the probative force of facts read in th
experience-from the logic of facts. And yet the law here
fail to recognize that there may be many explanations of
quite consistent with the innocence of the person charged
quires no particular finding from them. There is here no
tion in the sense of there being any rule requiring a part
clusion.

Again, using a common illustration, if one on good terms w

relatives and those who have been his intimates suddenly
from the places which, up to the time of such disappear
known him best, and is absent for a period of seven year
leaving no word of his intention and no word comes from him
meantime, we would conclude him dead, and so does the
however would realize that it was within the possibilities t
still alive, and so again does the law. If one who had kno
should see him even after the lapse of the seven years, he
lieve his eyes, and might listen to his neighbor who claim
seen him, even though the neighbor's tale might fail to b
viction of its truth, and so would the law. But the law m
say, and does, that if neither I nor my neighbor, nor any oth
come in and report having seen him, that it shall be conclude
is dead. Such is an illustration of the disputable or rebuttable
tion of the law. It is quite readily concluded that this rule
oped as one of expediency to relieve from the necessity of
more positive evidence of death in cases where such evide

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 PRESUMPTIONS 209

naturally be difficult to procure, and as the result of expe

like facts which has shown that such conclusions from suc
generally correct.
With certain other facts experience has shown that
intimately associated as that it may be said with great conf
they will not be found dissociated. Not that dissocia
facts is impossible, but practically unknown. Here
quite ready to conclude that if one or more of such fac
lished by satisfactory evidence the others of such fact
and so is the law. And as a matter of expediency the la
step farther and formulated a rule applicable to such c
quiring the finding of the existence of such associated
upon proof made of the existence of some of them. An
of the practically unbroken uniformity of experience with
has closed the door against all attempts to show that the f
sumed to exist do not actually exist in the particular c
is the law's conclusive or irrebuttable presumption.
It is urged by some and not without some show of re
rule requiring a fact to be presumed and permitting no att
the conclusion, no attempt to show it unwarranted in
case, is not a true presumption of law; that this so-call
presumption of law is a false, a "pseudo" presumption
argument of one of our most erudite and productive w
field.1
What then is this elusive thing we call a "presumption of law"?
Having in mind the ordinary meaning of words, apart for the mo-
ment from judicial construction, the term naturally suggests that the
law to some end presumes something; that some rule of law for some
reason requires something to be presumed to be, to exist. If the
dominant element, the outstanding characteristic of those rules we
call presumptions of law, is the presumption, is it any the less a pre-
sumption of law that in one case the rule permits no contravention
of the conclusion which the rule requires, though in another it does?
There is still presumption of fact by requirement of law in both
cases. It is said that men shall be conclusively presumed to intend
the ordinary and natural, the to be expected, consequences of
their acts. Is it not because in general the conduct of men is the
result of some measure of consideration that we find the law making

1 Chamberlayne's MODERN LAW OF EVIDENCE, ? II59 et seq.

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210 MICHIGAN LAW REVIEW

this declaration? If this be not the only reason, is it not

one? If action follows consideration, the to be expect
quences are in mind and therefore intended. Is it to b
plated that except for the foregoing consideration we woul
rule ?

The rule after all is not founded in the theory that in a particular
case the fact presumed actually must or does exist. Rather the rule
is one of expediency. As has been said, experience with the facts
controlled by this rule of irrebuttable presumptions of law has so
uniformly disclosed that the fact presumed to exist does actually
exist, that the conclusion is reached that the administration of jus-
tice will be best promoted in the long run if it be not permitted that
a controversy over the existence of the presumed fact be raised. And
this even though in the particular case it might be shown that it did
not exist.

This line of reasoning leads logically to the conclusion that wheth-

er the rule requires the existence of a particular fact to be presumed
provisionally, or without giving opportunity for its contravention, it
is still a fact assumed as the result of presumption, plus the rule of
law. The process is one of "presuming", from facts known or prov-
en, the existence of the fact presumed. And both are "presump-
tions of law" because the conclusions are required by rule of law.
True, the fact in neither case is established as the result merely of a
process of logical reasoning. That process might or might not, in a
particular case of either class, result in establishing the fact to the
satisfaction of the triers. The rules of law involved in this discus-
sion have, in both classes of cases, developed because the facts
known or proven and to which the rule attaches, when viewed in the
light of our common experience, tend naturally and logically to show
that the facts under the rules presumed do exist. But the rule of
law adds something. As has been said they give to the facts to
which they attach, a potency, a probative value, which, except for
the compelling force of the rule, they might not have.
If we are to define presumptions of law as rules of law requiring,
either absolutely or conditionally, particular conclusions of fact, then
this we have called the conclusive presumption as well as this we
have called the disputable presumption of law, is a true presumption,
not only in name but in theory.
There are certain other legal concepts the doctrine with respect to

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 PRESUMPTIONS 211

which is commonly, if not universally, couched in t

presumptions. One of these is very often expressed i
"every one is conclusively presumed to know the l
most casual observer will at once realize that this statement does
violence to common experience, for no one knows the law-all of it.
Stated however, in the form in which the real proposition first took
shape, "ignorantia legis neminem excusat", it is quite rational. No
state could long maintain itself without its recognition. But
with the theory of presumptions herein adopted this doctrine, it is
at once evident, has no concern. It recognizes no such process as
the deduction of one fact from other facts known or proven because
of a logical relation between them as shown by common experience.
It is truly a false, a "pseudo", presumption. The application of the
doctrine in either form will result in the same conclusion, but the
theories under which the like results are reached are radically dif-
ferent.

Another of the doctrines universally stated in the language of

presumptions is that "one charged with crime is presumed to be in-
nocent." Stated in this form and we are ready at once to say that
it cannot have developed as a rule of law out of common experience
on the theory of presumptions. Without any sort of question, of all
men charged with crime many more are guilty than innocent. Stated
however in the more general form, "all men are presumed innocent
of crime", does it not take on the character of a rebuttable presump-
tion of law? It can be said that in this form it comports well with
common experience. It is rebuttable. Guilt can be shown.
It is said however, that it fails of rightful classification as a true
presumption of law in that, "it possesses no basis of logical force-
of probative relevancy", and "because it persists in operation even
after a reasonable amount of evidence has been introduced against
the accused".2 If the maxim or rule is stated in the form applicable
to the accused only, the statement certainly has much to support it.
In that form it lacks justification in common experience. But is
there not danger that we stick in the bark? Fundamentally the doc-
trine is broader than that which limits application to investigation of
charges of crime involved in criminal trials. All men are presumed
innocent of crime. Wherever the question of whether one be guilty
of crime is to be determined innocence will be assumed until guilt is

2 Chamberlayne's MODERN LAW or EVIDENCE, ? II72a.

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212 MICHIGAN LAW REVIEW

proven, and this without reference to whether it be involve

civil or criminal case.

It is quite another question, that of whether the fact that one has
been arrested and charged with crime shall be taken against him on
the trial of the criminal charge. The fact that it might or might not,
affects in no way the nature or operation of this rule presuming
innocence. We do have the rule that the fact of the arrest and charge
can not be used to rebut the presumption.

It is assumed that the contention here is that all true presumptions

arise out of facts having a logical probative value in determining
whether a certain other fact exists; i. e. in themselves and apart from
the rule, and after the rule has spent its force, they tend to support
the fact presumed under the rule. Will the presumption of innocence
qualify as a true presumption under this test? Are we doing violence
to common experience or common sense if we say that this presump-
tion arises out of a fact known and of which the court must take
cognizance even without proof; the fact that men generally are inno-
cent of crime? Can it be said that this fact has no influence in the
determination of the question of guilt? Would it be error for a
trial judge to instruct jurors that in weighing the evidence they
should take into account the fact that men generally do not commit
crime, and that if they should find the other evidence bearing on the
question of guilt or innocence in such state that they would be in-
clined, except for such fact, to find guilt, this fact might be put in the
scale against guilt and if that scale then drops, they should find inno-
cence? It is a question whether the person seen on a particular occa-
sion was man or woman. The evidence shows that this person wore
the vestments commonly worn by the male human. True they might
be worn by the female, but assuming that they still are most com-
monly worn by the male is there any question but that the fact may
be considered in determining whether the person was male or female?
Are not the problems analogous? It is not contended that the fact
that men generally are innocent of crime is the only reason for the
rule, but one of them.

But what of the claim that because it does not cease to operate
when evidence is produced tending to show guilt it is not a true pre-
sumption? It is said that because it continues as a shield for the
defendant until the verdict is rendered it fails as a true disputable

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 PRESUMPTIONS 213

presumption of law which loses its force at once any substant

dence tending to show guilt is introduced.3
There is a sense in which it may be said that a disputable
sumption of law disappears from the case when evidence opp
sufficient to be considered by the jury, is introduced. This h
can only mean that so long as such condition obtains there is
casion for the application of the rule which requires a particul
clusion, that conclusion being required only in the absence of
ing evidence. It does not at all mean that the facts which ga
to the rule are not to be weighed and their probative value o
against that of the opposing evidence. If perchance the oppo
evidence for some reason should be stricken out by the court
the jury after considering the opposing evidence should con
that it had no probative value because, it may be, the witnes
whom it was produced are not believed, there can be no questi
that the rule of presumption will still operate. Consider our
sumption of death from unexplained absence for seven year
sume that all the facts necessary to the application of this r
presumption are established by the evidence of plaintiff in a p
lar case. The defendant calls a witness who testifies that he saw the
person the plaintiff claims is dead six years ago. The jurors for
some reason do not believe this witness, and with this testimony out
there is nothing to oppose the rule requiring death to be found.
Will it be contended that the rule has disappeared from the case and
will not now operate to require the finding of death? The fact is
that this rule applicable to the case of unexplained absence for seven
years must coerce the jury to find death whenever at any stage of
the trial it is determined that there is no evidence opposed to the
conclusion of death which the rule requires, and this regard-
less of whether one or one hundred witnesses have given
testimony which was offered in opposition to such a con-
clusion. It is a question as to whether the jury con-
cludes regardless of the number of witnesses called or the range of
their testimony, that there is actually any probative value to it all,
and this may not be done till they reach their jury room. Should
the jurors then conclude that it all has really no probative value, our
rule requiring death to be found in the absence of opposing evidence
will require the jury to find death if the facts to which the rule at-

8 Chamberlayne's MODERN LAW OF EVIDENCE, ? II72a.

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214 MICHIGAN LAW REVIEW

taches are found. So far as persistence in operation is

both the rule requiring the finding of death and that
assumption of innocence are continually calling upo
against whom they operate to produce evidence at the r
if he does not, and this pressure is never off till the jury
and neither has any other office.

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