Section 2.15 Jury Instructions

• Library: Sources of Proof (2014 Ed.)

B. (§2.15) Jury Instructions

One area in which there has been some discussion in recent years is the use of presumptions in jury instructions. The traditional view was that presumptions were legal matters for the court and that the jury should not be informed of their existence. Kennedy v. Phillips, 5 S.W.2d 33 (Mo. 1928); SPENCER A. GARD, MISSOURI EVIDENCE § 3:07, p. 77 (1985). The reason behind this rule was the fear that jurors might give too much weight to a presumption if advised of its existence. Kelley v. United Mut. Ins. Ass’n, 149 S.W.2d 905 (Mo. App. W.D. 1941). In particular, commentators have urged against the use of forms of the word “presume” in instructions. 2 MCCORMICK ON EVIDENCE § 344(4), p. 452 (John W. Strong ed., 5^th ed. 1999).

More recently, however, it has been recognized that some presumptions are appropriate matters for jury instructions. If the party opposing a presumption fails to offer any evidence to rebut...