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SSRN Electronic Journal
Article . 2017 . Peer-reviewed
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Demystifying Burdens of Proof and the Effect of Rebuttable Evidentiary Presumptions in Civil and Criminal Trials

Authors: Rothstein, Paul F.;

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

Abstract

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.

Country
United States
Related Organizations
Keywords

340, 344, Evidence

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
1
Average
Average
Average
bronze
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