Presumptions: Phenomena on the Periphery

In examining the law of evidence relative to the functions served by the device called “rebuttable presumption,” two classes of cases constantly tantalize the analyst and irritate the purist. The first concerns those instances where courts which regularly pay homage at the altar of Thayer suddenly and inexplicably send the question whether a presumption has been rebutted to the trier of fact. The second involves those courts which insist that, while the presumption mechanism does not shift the risk of non-persuasion to the opponent, the question whether the presumption has been rebutted always and quite properly ought to be decided by the trier of fact. It is the purpose of this article to suggest that many instances of the first phenomenon can be entirely justified under classic doctrine properly understood; while the second phenomenon finds its historical roots, not in articulate policy pronouncements relative to the proper allocation of credibility-testing, but in a nineteenth century verbal understanding