The Civil Litigator
| Publication year | 1981 |
| Pages | 2850 |
1981, November, Pg. 2850. The Civil Litigator
The presumption has been called one of "the slipperiest member(s) of the family of legal terms."(fn1) The slippery nature of presumptions is apparent from a review of Colorado law. "An analysis of the use of presumptions in civil cases in Colorado reveals a wide variety of treatment."(fn2)
The Colorado Rules of Evidence as adopted by the Colorado Supreme Court includes Rule 301, entitled "Presumptions in General in Civil Actions and Proceedings."(fn3) Rule 301 is important because it changes the effect of certain presumptions in civil cases. Rule 301 does not define, create or identify presumptions, or explain the rebuttal of presumptions and jury instructions. Therefore, before considering Rule 301, it is necessary to consider general rules on presumptions in civil cases (presumptions are also used in criminal cases,(fn4) but that subject is beyond the scope of Rule 301 and this article).
In Colorado, presumptions are usually defined as "rules of convenience based on experience or public policy and established to facilitate the ascertainment of truth in the trial of causes."(fn5) A more functional definition of a presumption is that it is a procedural rule which requires that the existence of a fact be assumed from the proof of other facts.(fn6)
Presumptions are sometimes misleadingly defined as inferences which the law requires to be drawn from certain established facts.(fn7) Presumptions should be distinguished from inferences: while a presumption requires that a fact be assumed, inferences are deductions or conclusions which may be drawn by the trier of fact.(fn8) The requirement of a presumption that a fact must be assumed to exist does not mean that it cannot be rebutted; in fact, almost all presumptions are classified as rebuttals. The irrebuttable or conclusive presumption is very rare(fn9) and should be classified as a rule of law rather than as a presumption.(fn10)
In some early Colorado decisions, a distinction was drawn between presumptions of law and presumptions of fact.(fn11) This distinction was later criticized as "often so metaphysical, subtle, and shadowy as to elude analysis."(fn12) Today, it is generally agreed that a "presumption of fact" is a type of inference rather than a presumption and the term is no longer commonly used.(fn13)
Presumptions have been created by the courts and the legislature in a wide variety of areas. One commentator believes that there are "hundreds of recognized presumptions."(fn14) Examples of common judicially created presumptions include the following: that a corporation has knowledge of what is in its files and records;(fn15) that public officials perform their duties in a regular manner;(fn16) and, that a letter was received by the addressee when it was addressed with the correct name and address and had adequate postage.(fn17) Res ipsa loquitur is usually referred to and treated by Colorado courts as a presumption,(fn18) but the general rule elsewhere appears to be that it is a doctrine which simply permits an inference of negligence.(fn19)
Examples of statutory presumptions in Colorado are that a person missing for seven years is dead;(fn20) that a check was issued with intent to defraud if the drawer failed to pay the check within twelve days after receiving notice of nonpayment;(fn21) and, that an injury was not the cause of death where death occurred more than two years after the injury.(fn22) Statutory presumptions often do not include the word "presumption"; instead, the statute may provide that proof of one or more facts will be prima facie evidence of another fact. The courts, however, have treated these statutes as having created presumptions.(fn23)
Are presumptions...
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