Presumptions unless rebutted stand as fact. For instance, we are presumed to be a U.S. Citizen and governed by the corporate bylaws of US Inc. unless and until we claim and act otherwise and destroy the presumption. Think Affidavit of negative averment, conditional accpetance upon proof of their claim sworn to under penalty of perjury that you are what they presume you are…whatever the presumptions it is up to us by our actions, words and deeds to rebut falsehoods of the mind aka assumptions. This is the world of fiction, assume means to pretend, to engage, to put on deceitfully, take appearance of, become bound as another is bound. There is nothing factual about a presumption once one claims and acts otherwise and shifts the burden of proof.
Legal dictionary definitions – Black’s Law Sixth Edition
Presumption. An inference in as favor of a particular fact. A presumption is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted. A legal device which operates in the absence of other proofto require that certain inferences be drawn from the available evidence.
Rebuttable presumption. A presumption that can be overturned upon the showing of sufficient proof; Once evidence tending to rebut the presumption is introduced, the force of the presumption is entirely dissipated and the party with the burden of proof must come forward with evidence to avoid a directed verdict.
Presumptive. Resting on presumptions; created by or arising out of presumption; inferred; assumed; supposed; as, “presumptive” damages, evidence, heir, notice, or title.
PRESUMPTIONS – CIVIL ACTIONS (New York)
1. Operation of a Presumption. A presumption in New York operates just like a presumption anywhere else in so far as its creation. However, when a party seeks to overcome a presumption, no one principle applies to all New York presumptions…
A. The Thayer Approach
Under the Thayer rule a presumption disappears whenever some evidence is introduced which viewed alone tends to disprove the existence of the presumed fact. This is a question for the judge. If it is overcome, the jury does not know about it–they decide the case [if there remains a question of fact] as they would if there was no presumption–only direct or indirect evidence.] A Thayer presumption places the burden of production or going forward with the evidence on the opponent but does not affect the burden of persuasion which remains with the proponent.
B. The Morgan Approach
Under the Morgan rule a presumption remains in the case and is sent to the jury. The jury is told about the presumption and is told to find for the party holding the presumption unless they find that the opponent has disproved the existence of the presumption by the greater weight of all the evidence. The effect is to assign the burden of persuasion as well as the burden of production to the opponent.
C. The “Pennsylvania Compromise.” There is a minority view that would send the presumption to the jury and let them determine if the presumption has been overcome but the burden of persuasion remains with the holder of the presumption.
2. Basic New York Approach – Thayer Plus. Most presumptions remain in the case only until the judge finds that the opponent has overcome the presumption with SOME SUBSTANTIAL EVIDENCE. This is more than the “some evidence” required in pure Thayer jurisdictions. Generally speaking what this means is that the evidence necessary to overcome the presumption must, viewed alone, disprove the nonexistence of the presumed fact. In other words, the opponent must do more than submit evidence that “tends” to disprove it.
3. The Unique Presumptions. Five presumptions require more or less evidence to overcome them than does the basic presumptions.
4. Conflicting Presumptions. When there are conflicting presumptions, the stronger prevails. The determination of strength is a law issue for the judge. If the presumptions are of equal weight, they are disregarded.
5. Presumptions in Criminal Cases. There is no difference between presumptions in Criminal Cases favoring the prosecution in New York and the rules that protect the defendants under the Federal constitution.
6. Specific Presumptions. It would burden this outline to set forth a list of the various presumptions recognized in New York. Any of the several New York text books discuss the various presumptions.
Read more on presumptions here;
http://www.law.syr.edu/Pdfs/0NY%20EVIDENCE%20LAW%202006%20UPDATED.pdf
