The Magic of Statutory Presumptions Revealed: Now You See Them, Now You Don’t Robert W. Eutsler, Attorney robeutsler@gmail.com 713.302.7221 July 30, 2015 Introduction In Texas criminal defense work, we encounter statutory presumptions randomly. They are sprinkled among such crimes as aggravated assault of a public servant, forgery, theft, and speeding. Presumptions and inferences are a staple of our adversary system of fact finding. It is often necessary for the trier of fact to determine the existence of an element of the crime that is, an – or fact from the “ultimate” “elemental” – existence of one or more or “evidentiary” “basic” facts. . . . [They] constitute prima facie evidence of the elemental fact. 442 U.S. 140, 156-157 (1979). Presumptions Ulster Cnty. Ct. v. Allen, are "the slipperiest member of the family of legal terms . . . ." McCormick on Evidence (3d ed., Cleary, ed.) p. 965 (1984). In the hands of a skilled practitioner armed with the right facts and a little
The Magic of Statutory Presumptions Revealed: Now You See Them, Now You Don’t Robert W. Eutsler, Attorney robeutsler@gmail.com 713.302.7221 July 30, 2015 Introduction In Texas criminal defense work, we encounter statutory presumptions randomly. They are sprinkled among such crimes as aggravated assault of a public servant, forgery, theft, and speeding. Presumptions and inferences are a staple of our adversary system of fact finding. It is often necessary for the trier of fact to determine the existence of an element of the crime – that is, an “ultimate” or “elemental” fact – from the existence of one or more “evidentiary” or “basic” facts. . . . [They] constitute prima facie evidence of the elemental fact. Ulster Cnty. Ct. v. Allen, 442 U.S. 140, 156-157 (1979). Presumptions are "the slipperiest member of the family of legal terms . . . ." McCormick on Evidence (3d ed., Cleary, ed.) p. 965 (1984). In the hands of a skilled practitioner armed with the right facts and a little