The Juridical Management of Factual Uncertainty
Ronald J. Allen
Northwestern University Law School
Craig R. Callen
Michigan State University-DCL College of Law
International Journal of Evidence & Proof, Vol. 7, p. 1, 2003
Civil presumption doctrine in the United States is unnecessarily complex and essentially unnecessary. Evidence law affords a number of evidentiary devices for managing uncertainty, which civil presumptions, at best, merely replicate, but in a different vocabulary with the attendant unnecessary complexity. We survey the critical similarities of evidentiary devices, which can save time and expense, but seldom affect the final outcome of litigation, and demonstrate the manner in which civil presumptions are mere substitutes for other well known evidentiary devices. We further show the unnecessary complexity introduced by instructions on presumptions. The potential that presumption instructions have for harmful effects on jurors, and the effort required to master the intricate formalities of presumptions, suggest that the main reason for their continued existence is distrust of jurors, and perhaps appellate court distrust of trial courts, and that an appreciation of the extent to which presumptions duplicate other evidentiary devices can be the key to sorely needed reform.
Number of Pages in PDF File: 31Accepted Paper Series
Date posted: August 26, 2003
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