§301 Presumptions

LibraryEvidence Restated Deskbook (2021 Ed.)

§301 Presumptions

A. Definition. A presumption is a deduction that the law expressly directs to be made from the proof of other facts. Most presumptions are rebuttable. Some are conclusive.
B. Effect
1. Shifts the Burden of Production. Unless a presumption is a conclusive one, it generally imposes on the party against whom it is directed the burden of producing evidence controverting the presumed fact, and if so controverted, that fact must then be determined from the evidence in the case as if there never was a presumption.
2. Shifts the Burden of Production and Persuasion. But if there are strong social policy reasons underlying the presumption, the presumption shifts the burden of both production and persuasion to the party against whom it is directed to show the nonexistence of the presumed fact.

Notes

A. Definition

"The word 'presumption,' in the strict legal sense . . . may be defined as 'the deduction which the law expressly directs to be made from particular facts.'" Merkel v. Ry. Mail Ass'n, 226 S.W. 299, 301 (Mo. App. E.D. 1920). Presumptions "'are aids to reasoning and argumentation, which assume the truth of certain matters for the purpose of some given inquiry. They may be grounded on general experience, or probability of any kind; or merely on policy and convenience.'" Detrich v. Mercantile Trust Co., 292 S.W.2d 300, 304 (Mo. 1956) (quoting J. Thayer, A Preliminary Treatise on Evidence at Common Law 314 (1898)).

Following are some presumptions recognized in Missouri appellate court opinions:

· Proof that a letter was mailed raises a prima facie presumption that it was received by the addressee. Proof of mailing may be established by testimony as to the routine practice of an organization in regard to the mailing of such letters. Armour & Co. v. Am. Auto. Ins. Co., 80 S.W.2d 685, 685–90 (Mo. 1935). But see Ins. Placements, Inc. v. Utica Mut. Ins. Co., 917 S.W.2d 592, 595–96 (Mo. App. E.D. 1996) (foundation proof was inadequate).

· The person to whom custody of a child was granted continues to be a suitable custodian. Humphrey v. Humphrey, 888 S.W.2d 342, 345 (Mo. App. E.D. 1994).

· It is in a child's best interest that a parent has custody. Estate of Williams, 922 S.W.2d 422, 424 (Mo. App. S.D. 1996).

· "[T]hat a person shown to be alive at a given time remains alive until the contrary is shown by some sufficient proof, or, in the absence of such proof, until a different presumption arises." Basman v. Frank, 250 S.W.2d 989, 994–95 (Mo. 1952).

· "If a duly executed will remains in the possession of the testator and after his death the will cannot be found, the presumption is that testator destroyed the will with intent to revoke it." McClellan v. Owens, 74 S.W.2d 570, 574 (Mo. 1934).

· "When real estate is purchased by the husband and deeded to both the husband and wife as tenants by the entirety, a presumption arises that the husband intended to make a gift to or a provision for the benefit of his wife." Schroeder v. Schroeder, 924 S.W.2d 22, 27–28 (Mo. App. E.D. 1996).

· Proof that there is "open, continuous, visible, and uninterrupted use" of property for ten years and that the use was "adverse" shifts the burden of going forward to the party asserting that the use was permissive. Speer v. Carr, 429 S.W.2d 266, 268 (Mo. 1968).

· Proof of the occurrence of communications with a jury during deliberations creates a presumption that the occurrence was prejudicial to the moving party. State v. Babb, 680 S.W.2d 150, 152 (Mo. banc 1984).

· Proof of an executed release of claims creates a presumption that the document is valid. Andes v. Albano, 853 S.W.2d 936, 940 (Mo. banc 1993).

· Absent the existence of a personal relationship, the law presumes an intent to pay for services rendered. Buchweiser v. Estate of Laberer, 695 S.W.2d 125, 128 (Mo. banc 1985).

· A prima facie showing that an employee is in a protected class, met job expectations, and experienced adverse employment action creates a presumption that the employment action was discriminatory. In re Estate of Latimer, 913 S.W.2d 51, 55 (Mo. App. W.D. 1995).

· "[A] child conceived in marriage is presumed to be legitimate, notwithstanding it was born after termination of the bonds of matrimony." JD v. MD, 453 S.W.2d 661, 663 (Mo. App. S.D. 1970).

· A "presumption against suicide is so strong that unless the evidence negatives every reasonable inference of death by accident, a finding of death by accident will be justified." Hendrix v. Metro. Life Ins. Co., 250 S.W.2d 518, 520 (Mo. 1952).

· It is presumed that a testator was "of sound and disposing mind until there is evidence tending to overcome this presumption." Detrich, 292 S.W.2d at 304–05.

15. It is presumed that criminal defense counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, and that counsel's challenged action was sound trial strategy. Paulson v. State, 342 S.W.3d 452, 455–56 (Mo. App. S.D. 2011) (citing State v. Kinder, 942 S.W.2d 313, 335 (Mo. banc 1996)); see also Premo v. Moore, 562 U.S. 115, 121 (2011) (quoting Strickland v. Wash., 466 U.S. 668, 689 (1984)) ("A court considering a claim of ineffective assistance must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance.").

· Valuation assessments on real property are presumed to be correct. Town & Country Racquet Club v. State Tax Comm'n of Mo., 811 S.W.2d 403, 405 (Mo. App. E.D. 1991).

· "A recitation of the consideration on which an agreement is based is prima facie evidence that sufficient consideration existed" and "all written promises to pay another a specific sum of money, signed by the promisor, import a consideration." Hammons v. Ehney, 924 S.W.2d 843, 850–51 (Mo. banc 1996).

· Prejudice is presumed from refusal to disqualify the entire prosecuting attorney's office upon a showing that two part-time prosecutors had provided legal services to the defendant in civil litigation initiated by the victim of the charged crime. State v. Ross, 829 S.W.2d 948 (Mo. banc 1992).

· Failure of a party to call a witness who has knowledge of facts and circumstances vital to the case generally raises a presumption that the testimony would be unfavorable to the party failing to offer the testimony. But it is improper for a party to argue the negative inference resulting from an opponent's failure to produce such a witness if the witness is equally available to both parties. Leehy v. Supreme Exp. & Transfer Co., 646 S.W.2d 786, 790 (Mo. banc 1983); see also Hill v. Boles, 583 S.W.2d 141, 146 (Mo. banc 1979) (although cases have generally held that a party's treating and examining physician in a personal injury action is presumptively more available to that party, the presumption may be inapplicable by reason of the circumstances shown in evidence); Kelly ex rel. Kelly v. Jackson, 798 S.W.2d 699, 702...

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