Presumptions, burdens of proof, and explanations

On the standard view, there are different types of presumptions but, nevertheless, they all asymmetrically allocate the burden of proof. In this paper, I distinguish two meanings of the “burden of proof” and argue that two types of presumptions, practical and cognitive ones, allocate the burden of proof in different senses. Consequently, the standard accounts of presumptions are either more fragmented than scholars usually admit, or they have lower explanatory potential

Burdens of proof, presumptions and standards of proof in criminal cases

In jurisdictions that subscribe to adversarial mode of litigation, burdens and standards of proof have significant roles in the adjudication and determination of criminal cases. The operation of the principle of presumption of innocence in such jurisdictions determines issues of who bears what burden and the extent thereof. The Ethiopian criminal procedure system predominantly exhibits adversarial features, and there is the need for the comprehension and enforcement of the respective burdens and standards of proof borne by litigants. The constraints in clarity are more pronounced in those criminal law provisions that embrace some form of presumptions such as provisions on corruption offences. This note highlights how issues of burden and standard of proof are allocated as between prosecuting authorities and accused persons. Apart from explaining the nexus between the principle of presumption of innocence, burdens of proof and standards of proof, it indicates the implications of the operation of the principle of presumption of innocence upon the allocation of evidential and persuasive burdens of proof as between the state and the accused. It further outlines the effects of the various forms of presumptions upon the different kinds of burdens of proof

Demystifying Burdens of Proof and the Effect of Rebuttable Evidentiary Presumptions in Civil and Criminal Trials

Evidentiary presumptions in law act as shortcuts to rigorous proof. By means of an evidentiary presumption, a difficult-to-prove critical fact may be established by proving some other more easily provable subsidiary fact from which the critical fact may be presumed. This accounts for the popularity of these presumptions with trial lawyers. But the puzzling question has always been, “What effect on the normal processes of trial, does a legal presumption have, especially when there is other evidence pro and con on the presumed fact?” This article aims to shed light on these problems, and to examine the arsenal of tools available to help solve them or at least to help think about solving them. But before we do, we must explore another set of widely misunderstood legal concepts that are key to the inquiry. I am talking about “burdens of proof.” Evidentiary presumptions are exclusively concerned with altering burdens of proof in one way or another. Hence we begin by examining how burdens operate in cases where no presumption is invoked; and then later we will demonstrate how evidentiary presumptions can change the picture

Presumption in legal argumentation: from antiquity to the middle ages

This paper traces the evolution of the concept of presumption from a subordinate part of the Roman law to a central feature of legal disputations in medieval law. Special attention will be given to the second edition of the Libellus Pylei Disputato rius by Pilius of Medicina, and to the anonymous Tractatus de Praesumptionibus (12th century). My analysis will emphasize elements of these developments useful in the renewed discussion about the role of presumptions in argumentation stimulate d particularly by Richard Gaskins\u27 Burdens of Proof in Modern Discourse, highlighting the paradigmatic significance of rhetorical manipulations of burdens of proof in legal reasoning

An Enquiry Meet for the Case: Decision Theory, Presumptions, and Evidentiary Burdens in Formulating Antitrust Legal Standards

Presumptions have an important role in antitrust jurisprudence. This article suggests that a careful formulation of the relevant presumptions and associated evidentiary rebuttal burdens can provide the “enquiry meet for the case” across a large array of narrow categories of conduct confronted in antitrust to create a type of “meta” rule of reason. The article begins this project by using decision theory to analyze the types and properties of antitrust presumptions and evidentiary rebuttal burdens and the relationship between them. Depending on the category of conduct and market structure conditions, antitrust presumptions lie along a continuum from conclusive (irrebuttable) anticompetitive, to rebuttable anticompetitive, to competitively neutral, and on to rebuttable procompetitive and conclusive (irrebuttable) procompetitive presumptions. A key source of these presumptions is the likely competitive effects inferred from market conditions. Other sources are policy-based -- deterrence policy concerns and overarching policies involving the goals and premises of antitrust jurisprudence. Rebuttal evidence can either undermine the facts on which the presumptions are based or can provide other evidence to offset the competitive effects likely implied by the presumption. The evidentiary burden to rebut a presumption depends on the strength of the presumption and the availability and reliability of further case-specific evidence. These twin determinants can be combined and understood through the lens of Bayesian decision theory to explain how “the quality of proof required should vary with the circumstances.” The stronger the presumption and less reliable the case-specific evidence in signaling whether the conduct is anticompetitive versus procompetitive, the more difficult it will be for the disfavored party to satisfy the evidentiary burden to rebut the presumption. The evidentiary rebuttal burden generally is a burden of production, but also can involve the burden of persuasion, as with the original Philadelphia National Bank structural presumption, or typical procompetitive presumptions. If a presumption is rebutted with sufficient offsetting evidence to avoid an initial judgment, the presumption generally continues to carry some weakened weight in the post-rebuttal phase of the decision process. That is, a thumb remains on the scale. However, if the presumption is undermined, it is discredited and it carries no weight in the post-rebuttal decision process. The article uses this methodology to analyze various antitrust presumptions. It also analyzes the, burden-shifting rule of reason and suggests that the elements should not be rigidly sequenced in the decision process. The article also begins the project of reviewing, revising and refining existing antitrust presumptions with proposed revisions and refinements in a number of areas. The article invites other commentators to join the project by criticizing these proposals and suggesting others. These presumptions then could be applied by appellate courts and relied upon by lower court, litigants and business planners