Volume 13 - Issue 74
/ February 2024
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http:// www.amazoniainvestiga.info ISSN 2322- 6307
DOI: https://doi.org/10.34069/AI/2024.74.02.31
How to Cite:
Bobechko, N., & Fihurskyi, V. (2024). Presumptions as means of proof in criminal procedure law of states with continental and
Anglo-American legal systems. Amazonia Investiga, 13(74), 373-380. https://doi.org/10.34069/AI/2024.74.02.31
Presumptions as means of proof in criminal procedure law of states
with continental and Anglo-American legal systems
Презумпції як засоби доказування у кримінальному процесуальному праві держав
континентальної та англо-американської систем права
Received: January 4, 2024 Accepted: February 21, 2024
Written by:
Nazar Bobechko1
https://orcid.org/0000-0001-9304-3170
Volodymyr Fihurskyi2
https://orcid.org/0000-0002-5329-8985
Abstract
The aim of this article is to study legal regulation,
doctrinal approaches on understanding and using
presumptions in criminal procedure proof of the
states with continental and Anglo-American
legal systems. The methodological basis of this
research consists of general scientific and special
legal methods, namely dialectical, analysis,
generalization, structural and functional,
hermeneutic, dogmatic and comparative legal
methods. The article analyzes one of the means
of criminal procedure proof – presumption. By
analyzing the corresponding norms of CPC of
Ukraine, legal positions of the European Court of
Human Rights, Supreme Court of the USA and
the views of fellow researchers, the authors
present their vision of issues within the scope of
the study. The significance of presumptions as
means of proof in criminal proceedings is
clarified and their types which are distinguished
in the doctrine of criminal procedure of
continental and Anglo-American legal systems
are characterized.
Keywords: criminal procedure law, process of
proof, means of criminal procedural proof, legal
presumptions, factual presumptions.
1
Dr. Sc. (Law), Professor, Head of the Department of Criminal Procedure and Criminalistics, Ivan Franko National University of
Lviv, Ukraine. WoS Researcher ID: GPC-8023-2022
2
PhD (Law), Associate Professor of the Department of Criminal Procedure and Criminalistics, Ivan Franko National University of
Lviv, Ukraine. WoS Researcher ID: KIE-9238-2024
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Introduction
An indispensable tool of cognition in criminal
proceedings is the use of knowledge that certain
facts are prima facie proof of other facts. This
refers to the conclusion to which the law directs
the subject of proof when a certain set of facts is
established, namely presumption.
When the word ‘presumption’ (from Latin.
praesumptio – assumption) is used in everyday
speech, it is considered that a certain
phenomenon, state or event can exist and arise
but not certainly or not necessarily. It may
happen that the assumption will be rebutted;
however, checking it each time would not be
economical both in financial and temporal
dimensions. In other words, something may or
may not happen but it will not necessarily take
place.
Presumption as a legal category was widely used
back in ancient Roman law. Later, a lot of
presumptions were introduced into the national
legal systems of different states. Without them,
the process of proof would have been
complicated and lengthy, and the completion of
criminal proceedings would have been
impossible within a reasonable time frame.
To form presumptions several factors must
interact simultaneously: there must be a
possibility to form the most probable conclusion
from the observed facts, events, phenomena and
their individual properties, the importance and
significance of which in the regulation of social
relationships are recognized by the majority of
people. This must occur at the most favorable
moment and in the most favorable environment
which will formalize this conclusion and obtain
its consolidation in the existing system of legal
norms. Thus, presumption is a general
assumption, based on the laws of logic, which
reflects some general tendency (fact, event, etc.)
(Rudzkis & Panomariovas, 2016). Therefore, not
every assumption may be regarded as a
presumption.
Although a presumption is a result of certain
reasoning, it is erroneous to equate a presumption
and a logical conclusion. Reasoning is a ‘way’
which leads to a ‘goal’ – logical conclusion.
Nevertheless, the presumption as well as the
logical conclusion are the results of reasoning;
though it differs from the latter in the various
consequences it entails (for example, it allocates
the burden of proof between parties) and its
obligatory nature. Unlike a logical conclusion, a
presumption enshrined in law is always
obligatory and does not lose its force, even if the
existence of the presumed fact is disputed in a
specific case (Rudzkis & Panomariovas, 2016).
A presumption is based on certain social patterns,
formulated on the basis of life experience (from
Latin praesumptio ex eo quod plerumque fit – a
presumption arises from what usually happens).
That is why a presumption contains some part of
truth.
The article provides answers to questions
regarding the essence of presumption as a means
of criminal procedural proof, the types of
presumptions in criminal procedural law as
classified by researchers, and the legal provisions
and doctrinal positions regarding the application
of presumptions in proof in criminal proceedings
of continental and Anglo-American legal
systems.
Literature review
The use of presumptions in the process of proof
in criminal proceedings have been studied by
Michael H. Graham, Piotr Hofmański,
Shari L. Jacobson, Laird Kirkpatrick,
Kabore Sandrine Marie, Mustapha Mekki,
Christopher B. Mueller, Artūras Panomariovas,
Liesa Richter, Tomas Rudzkis,
Stanisław Waltoś, Worku Yaze Wodage. The
scientific ideas, theoretical positions and
recommendations formulated by these
researchers are particularly important for the
improvement of criminal procedure law of the
respective states and for the application of its
regulations.
Waltoś & Hofmański (2020) define
presumptions as judgements about high
credibility of a certain fact arising from another
fact or facts and does not arouse any doubts. The
researchers classify presumptions as surrogates
of proof.
Explaining the significance of this means of
proof, Mustapha Mekki (s.f), Kabore (2017)
argue that a presumption makes it possible to
exempt from proof, if it is established by law.
This is evidential argumentation, when presented
to a judge, which helps to establish a certain fact
based on indirect evidence. Thus, it constitutes a
shift of the subject of proof.
In turn, Rudzkis & Panomariovas (2016) drew
attention to the fact that variety and prevalence of
presumptions is based on three elements: social
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policy of the state, aspiration to optimize the law
and aspiration to provide flexibility, consistency
and clarity in legal relations.
Mueller, Kirkpatrick & Richter (2018)
considering the issue of presumptions, noted that
to help the prosecutor carry the heavy burden
imposed on the state in criminal cases, courts and
legislatures have created what are often called
“presumptions,” but which, because of
constitutional constraints, can only operate as
inferences. Many jurisdictions have recognized a
“presumption” inviting an inference of intent on
the basis of proven behavior.
Instead, Shari L. Jacobson (1987) concluded that
theoretical distinction between permissive and
mandatory presumptions has resulted in much
confusion and serves no practical purpose.
Because mandatory presumptions confuse the
jury and jeopardize the rights of the accused
without serving any purpose that cannot be
accomplished through other evidentiary devices,
such as affirmative defenses, they should be
eliminated.
Michael H. Graham (2009) argued that a
mandatory presumption may affect not only the
strength of the "no reasonable doubt" burden but
also the placement of that burden; it tells the trier
that they must find the elemental fact upon proof
of the basic fact, at least unless the defendant has
come forward with some evidence to rebut the
presumed connection between the two facts.
Meanwhile, a mandatory presumption is not
mandatory at all, i.e., the burden of production
may not as a matter of law be shifted to the
defendant.
Wodage (2014) expressed the opinion that
endorsing persuasive presumptions against
accused persons cannot stand valid in the face of
the fundamental human right to, and principle of,
the presumption of innocence. The risk of
convicting and punishing innocent individuals
requires society to prefer erring on acquitting
criminal persons rather than erring on the
conviction of innocent persons.
Methodology
The methodological basis of the article is a
dialectical approach to the scientific
understanding of social phenomena. In writing
this article, general scientific and specialized
legal methods of cognition were also used:
analysis (applied to identify shortcomings in the
legal regulation of the use of presumptions in
criminal procedural proof); generalization (used
to characterize the legal positions of the
European Court of Human Rights and the
Supreme Court of the United States regarding the
conditions of using presumptions in criminal
procedural proof); structural-functional method
(made it possible to elucidate the significance of
presumption as a means of criminal procedural
proof); hermeneutic method (applied to interpret
the essence of legal and factual presumptions);
doctrinal or specialized legal method (used in
studying scientific approaches to understanding
presumption as a means of criminal procedural
proof); comparative legal method (provided the
opportunity to compare the legal regulation of the
use of presumptions in criminal proceedings of
continental and Anglo-American legal systems).
Results and discussion
In procedural law presumption is a means of
proof which allows drawing a conclusion about
the existence or or non-existence of a fact
(a presumed one) based on another already
established fact (a basic one). In order to draw a
specific conclusion about the existence or
nonexistence, accurateness or falsity of a fact,
such presumptions necessitate the prior
establishment of a basic or underlying fact.
Presumptions ensure the definitiveness of
criminal procedural regulation, expedite criminal
procedural activities, save resources and funds.
Presumptions simplify the process of proof by
relieving the need of some subjects to prove
presumed facts (for example, the innocence of
the defendant, the validity of a court decision that
has acquired legal force), and placing this
obligation on others. Besides, presumptions
exempt these parties from the necessity to repeat
the same legal procedural processes.
In search of truth, it is relevant to use
presumptions as exceptions. If a "presumption"
is something that is "more likely than not," then
in a process of proving that focuses on the idea
of seeking the truth, presumptions should be
resorted to in rare cases. They should only be
used when it is necessary to overcome a certain
uncertainty that cannot be eliminated by other
standard methods, and without disrupting the
balance of data that have evidential significance.
Presumptions are justified in situations where
there is a lack of complete and reliable
knowledge. However, when such knowledge
exists or can be obtained through unbiased data,
such reliance is at least irresponsible (Rudzkis &
Panomariovas, 2016).
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Thus, being one of the methods of understanding
objective reality, presumption shall be used when
there is a need to act, to draw conclusions
concerning certain facts, when the level of
knowledge is limited.
In Polish doctrine of criminal procedure,
presumption is understood as a judgment of the
high credibility of a certain fact arising from
another fact or facts which raise no doubts. They
distinguish a presumed fact (fakt domniemany),
which and which arises from another, and the
basis for presumption (podstawa domniemania)
i.e., a fact that asserts the high probability of
another fact (Waltoś & Hofmański, 2020).
Thus, the ground for presumption and presumed
fact are linked by a cause and effect relationship.
A similar approach is also used in Anglo-
American criminal procedure jurisprudence.
Thus, presumption is defined as a rule which
requires the establishment of a basic fact to
consider the existence of a presumed fact. After
proving the basic fact, which is a ground for the
presumption, the presumed fact shall be
considered established unless and until it is
rebutted. Presumption expresses a legally
recognized connection between facts (Jacobson,
1987).
Presumptions are divided into legal and factual
ones based on the way they are established.
Legal presumptions (praesumptiones iuris) arise
from legal regulations. In turn, depending on the
way of their rebuttal, such presumptions are
divided into rebuttable and irrebuttable.
Rebuttable (praesumptiones iuris tantum) or
conditional presumptions consist of the
presentation of evidence that, despite the proven
circumstance belonging to the subject of proof,
the legal consequences were different from those
stipulated in the provision establishing the
presumption. Striking examples of such
presumptions include the presumption of
innocence, the presumption of the truthfulness of
a court decision that has acquired legal force.
On the other hand, irrebuttable (praesumptiones
iuris ac de iure) or absolute presumptions cannot
be challenged by evidence to the contrary. While
not as common, such presumptions are
established in a number of provisions of the
criminal procedural law. For instance, an
investigative judge, judge or the jury cannot take
part in criminal proceedings if they personally,
their close relatives or members of their family
are interested in the outcome of the proceedings
(Art. 75, Part 1, Cl. 3 of the CPC of Ukraine); in
any case, testimony given by investigators,
prosecutors, members of operational units, or any
other person regarding statements made by
individuals to investigators, prosecutors, or
members of operational units during the conduct
of criminal proceedings cannot be considered
admissible evidence (Art. 97, Part 7 of the CPC
of Ukraine); repeated failure to appear in court by
a victim who has been duly summoned
(particularly, when there is a confirmation of
receipt of the summons or acknowledgment of its
content by other means), without valid reasons or
without notification of the reasons for non-
attendance after the prosecutor's refusal to
support public prosecution and with the victim's
consent to support the prosecution, is equated to
the victim's refusal to press charges and results in
the closure of the criminal proceedings for the
relevant charges (Art. 340, Part 6 of the CPC of
Ukraine) (Law of Ukraine No. 4651-VI).
Factual presumptions (praesumptiones homini)
judgments about facts that arise from life
experience and observation of relevant patterns
of life and relationships between events. They
make it possible to assert the credibility of a
specific fact based on its natural origin.
Therefore, factual presumptions are not subject
to criminal procedural regulation. On the other
hand, they are considered rebuttable. An example
of a factual presumption is the guilt of the
accused and the absence of the need to prove it at
every court hearing. However, if there are doubts
about their guilt, the presumption ceases to be
applied, and this circumstance must be proven
(Art. 242, Part 2, Cl. 3 of the CPC of Ukraine)
(Law of Ukraine No. 4651-VI). Factual
presumption is used when a fact relevant to
criminal proceedings cannot be directly proven
with evidence, or it would be particularly
difficult to obtain such evidence.
Factual presumptions do not exclude the
presentation of evidence to the contrary.
Presumption serves as a tool of evidence.
Presumption, especially irrebuttable,
corresponds partially to relative truth that cannot
be rebutted. Legal presumptions express a certain
normality, a certain probability. The stronger the
presumption, the higher the probability. Truth,
particularly through legal presumptions, is true
provided that it either embodies a certain amount
of values or transmits a certain probability
(Mekki, s.f). Presumptions are facts that rather
establish the likelihood of true evidence. It is a
situational argument (Kabore, 2017).
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The study of foreign legal regulations confirms
that national legislation of states may establish
legal or factual presumptions that shift the burden
of proof from certain issues to the suspect or
accused. The European Court of Human Rights
(hereinafter – ECtHR) has repeatedly expressed
its legal position regarding their compliance with
Article 6 of the European Convention on Human
Rights and Fundamental Freedoms (hereinafter –
ECHR).
In the following way, a man from the Republic
of Zaire was arrested at the Roissy Airport while
he was picking up his luggage, in which they had
found a large quantity of cannabis. The applicant
claimed that he was unaware of the presence of
cannabis and mistakenly took the luggage,
thinking it was his own. He was charged with
both the criminal offense of illegal importation of
drugs and the customs offense of smuggling
prohibited goods. The court found him guilty and
sentenced him to two years in prison, banned him
from residing in France, and imposed a fine. The
Paris Court of Appeals overturned the verdict
regarding the criminal offense related to the
illegal importation of drugs but upheld the lower
court's decision regarding the customs offense of
smuggling prohibited goods. The Court of
Cassation rejected the appeal, stating that Article
392(1) of the Customs Code was correctly
applied in the case, according to which "a person
who possesses smuggled goods is considered
responsible for committing an offense."
The ECtHR noted that the Convention does not
prohibit presumptions of fact or law in general.
However, it obliges member states to stay within
certain limits in this regard in criminal law.
From the point of view of the ECtHR the Paris
Court of Appeals made a clear distinction
between the criminal offense of illegal drug
importation and the customs offense of
smuggling prohibited goods. Under the first
point, the court acquitted Mr. Salabiaku,
applying the presumption of innocence and
thereby demonstrating meticulous respect for the
presumption of innocence. On the other hand,
under the second point, it upheld the verdict
issued by the lower court, without contradicting
itself, as the facts and actions incriminated under
this point were different. Specifically, it noted
that Mr. Salabiaku "went through customs with
the luggage and declared to the customs officers
that it was his property." It added that he could
not "claim an inevitable mistake since he had
been warned by an Air Zaïre official... not to take
possession of a suitcase unless he was sure it was
his, notably because he would have to open it at
customs." Therefore, before declaring himself
the owner of the suitcase and confirming his
possession in the eyes of the law, he could have
checked it to ensure it did not contain any
prohibited goods. The court noted that "by not
doing so and having in his possession luggage
containing 10 kilograms of herbal and seed
cannabis, he committed a customs offense in the
form of smuggling prohibited goods".
As a result, the ECtHR concluded that in this
case, the French courts did not apply Article
392(1) of the Customs Code in a manner which
contradicts the presumption of innocence (Case
of Salabiaku v. France, 1988).
In turn, in the case of Phillips v. The United
Kingdom, the ECtHR noted that Article 2 of the
1994 Act provides that the Crown Court must
issue a confiscation order where there is a
defendant who the court is to sentence for one or
two drug trafficking offenses, and with respect to
whom the court has found that he received at
some point a payment or other reward connected
with drug trafficking. In determining whether the
defendant obtained a benefit from drug
trafficking and to what extent, Article 4(2) and
(3) of the 1994 Act requires courts to presume
that any property apparently belonging to the
defendant at some time since his conviction, or
property acquired by him within six years before
the commencement of criminal proceedings as
payment or reward connected with drug
trafficking, as well as to presume that any
expenses incurred by him during this same period
were paid for from proceeds of drug trafficking.
This statutory presumption may be rebutted by
the defendant regarding any property or expenses
if its falsity is proved or if its application could
risk an unjust decision (Article 4(4)).
Returning to the relevant second and third criteria
– the nature of the proceedings in the case, as
well as the type and severity of the punishment
facing the applicant – the ECtHR noted that the
presumption required by the 1994 Act that all
property owned by the applicant during the
previous six years is proceeds from drug
trafficking imposes on the national court a
requirement to consider its involvement in other
drug-related unlawful activities prior to the
commission of the offense for which he was
convicted. Contrary to the usual burden on the
prosecution to prove the elements of the
allegations made against the accused, the burden
of proof was placed on the applicant: through a
weighing of probabilities, he had to prove that he
acquired the property in question through means
other than drug trafficking.
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Continuing further, the ECtHR concluded that
the purpose of this procedure was not to convict
or acquit the applicant of any other drug-related
offense. Although the Crown Court assumed that
he had profited from drug trafficking in the past,
for instance, this was not reflected in his record,
which included only the conviction for the
offense committed in November 1995. Under
such circumstances, it cannot be asserted that the
applicant was "charged with the commission of a
crime". Besides, the purpose of the procedure
under the 1994 Act was to provide the national
court with the opportunity to properly determine
the amount for the confiscation order. The
ECtHR considered this procedure analogous to
the court determining the amount of a fine or the
duration of a prison sentence to be imposed on an
already convicted criminal. The ECtHR
emphasized that although, despite the above
conclusion, the issuance of a confiscation order
did not lead to the bringing of any new "charge"
within the meaning of Article 6(2) of the ECHR,
this provision should still be applied to protect
the applicant from assumptions made during the
consideration of the confiscation of property
issue. Although it is evident that Article 6(2) of
the ECHR regulates criminal proceedings in
general, not exclusively the consideration of the
substance of the charge, the right to the
presumption of innocence under Article 6(2) of
the ECHR arises only in connection with a
specific "charge" of committing a crime. In the
event that the accused is found guilty of such a
crime, the provisions of Article 6(2) of the ECHR
cannot be applied to assertions regarding the
character and behavior of the accused as part of
the punishment determination procedure if such
allegations do not have the character and degree
to equal the bringing of a new "charge" in the
autonomous sense of the ECHR. In conclusion,
the ECtHR ruled that the provisions of Article
6(2) of the ECHR cannot be applied to
proceedings in a case concerning the confiscation
of property against the applicant (Case of Phillips
v. United Kingdom, 2001).
The use of presumptions in the criminal process
of the United States is characterized by its
specificity. This issue is regulated by decisions of
the Supreme Court of the USA, including New
York v. Allen (1979), Sandstrom v. Montana
(1979) та Frances v. Franklin (1985).
In American criminal procedural doctrine, the
following provisions regarding presumptions
correspond to the legal positions of the Supreme
Court of the United States.
Firstly, an irrebuttable presumption directed
against the defendant is unconstitutional because
it relieves the state from the obligation to prove
every element of the offense beyond a reasonable
doubt. Secondly, the burden of proving an
element of the crime through presumption cannot
be placed on the defendant. Thirdly, since a
presumption arises from a legal regulation
requiring the existence of the presumed fact to be
considered established in the absence of evidence
to the contrary, presumptions operating against
the defendant can never be applied in criminal
cases. A rebuttable presumption cannot be used
by the trial court to render a verdict against the
defendant based on an element of the crime
proven through it. Fourthly, the jury may receive
instructions regarding the inference drawn from
the underlying fact to the presumed fact provided
there is a sufficient rational connection between
them. Namely, a) if the presumed fact is more
likely true than not, the jury may receive an
instruction that if they find the underlying fact,
they are entitled, but not obligated, to infer the
presumed fact (instructed factual inference); b) if
the presumed fact is an element of the crime or is
contested, and there is a sufficient rational
connection, the jury may receive an instruction
that if they find the underlying fact beyond a
reasonable doubt, they may, but are not required
to, conclude the derived fact. A sufficient rational
connection exists if the court decides that the
evidence of the underlying fact establishes that
the presumed fact is more likely true than false
(instructed elemental inference); c) if the fact to
be inferred is an element of the crime or is
contested by the defense but there is a sufficient
rational connection, the jury may receive an
instruction that if they find the underlying fact
beyond a reasonable doubt, they may, however,
are not required to, consider the underlying fact
as sufficient evidence of the presumed fact. The
underlying fact is an obvious, foreseeable proof.
A sufficient rational connection exists if the court
determines that the jury could only infer from the
underlying fact that the presumed fact was
established beyond a reasonable doubt prima
facie (instructed prima facie inference) (Graham,
2009; Mueller, Kirkpatrick & Richter, 2018).
The aforementioned provisions have been
consolidated in Rule 303 of the Federal Rules of
Evidence in the United States, which Congress
rejected on the grounds that the issue of
presumptions in criminal cases was under its
consideration in the form of bills to revise the
Federal Criminal Code. Nevertheless, the project
of this rule has not lost its relevance. According
to it, the judge is not authorized to instruct the
jury regarding the establishment of a presumed
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fact that testifies against the defendant. If the
presumed circumstance establishes guilt or is an
element of the crime, or if it is contested by the
defense, the judge may submit the question of
guilt or the existence of the presumed
circumstance to the jury for consideration, but
only if the jury, who have a sufficient level of
competence, can, based on the evidence as a
whole, including evidence of underlying facts,
find guilt or the presumed circumstance to be
beyond reasonable doubt. If the presumed fact
has lesser impact, its existence may be submitted
to the jury for consideration, provided that the
underlying facts are supported by substantial
evidence or established in another way, if only
the evidence as a whole does not refute the
existence of the presumed fact. Whenever the
jury is asked to consider the existence of a
presumed fact against the defendant, the judge
must instruct them that they may consider the
underlying facts as sufficient evidence of the
presumed fact, but they are not required to do so.
Besides, if the presumed fact establishes guilt, is
an element of the crime, or is contested by the
defense, the judge must instruct the jury that its
existence must be proven based on all the
evidence beyond a reasonable doubt (Graham,
2009).
In the criminal process of the United States, a
presumption typically operates as a rule allowing
the inference of the existence of one fact based
on evidence of the existence of another fact. It is
construed specifically as an inference because it
is permissive rather than obligatory, as it does not
place the burden of proof on the prosecution, and
the jury are not required to adhere to it. The
purpose of such permissive presumptions is to
guide the jury to a natural inference that they
might not otherwise reach. On the other hand,
mandatory presumptions require the person
establishing the facts to draw conclusions in
favor of the presumed fact. Mandatory
presumptions pose problems when used in
criminal cases because they have the effect of
reducing the burden of proof on the prosecution.
The use of mandatory presumptions, according to
the position of the United States Supreme Court,
may violate the defendant's rights to due process
because a conviction is possible in the absence of
evidence beyond a reasonable doubt of every
element constituting the charged crime
(Jacobson, 1987).
In the criminal process of the United States, a
presumption typically operates as a rule allowing
the inference of the existence of one fact based
on evidence of the existence of another fact. It is
construed specifically as an inference because it
is permissive rather than obligatory, as it does not
place the burden of proof on the prosecution, and
the jury are not required to adhere to it. The
purpose of such permissive presumptions is to
guide the jury to a natural inference that they
might not otherwise reach. On the other hand,
mandatory presumptions require the person
establishing the facts to draw conclusions in
favor of the presumed fact. Mandatory
presumptions pose problems when used in
criminal cases because they have the effect of
reducing the burden of proof on the prosecution.
The use of mandatory presumptions, according to
the position of the United States Supreme Court,
may violate the defendant's rights to due process
because a conviction is possible in the absence of
evidence beyond a reasonable doubt of every
element constituting the charged crime
(Jacobson, 1987).
In turn, the rebuttal of presumed facts occurs in
one of three forms: provisional, evidential and
persuasive presumptions (Wodage, 2014).
Provisional presumptions. The necessity to draw
a conclusion from a proven underlying fact is
determined in each specific case. The jury may
exercise their discretionary power to draw or not
to draw a conclusion about the existence or non-
existence of a certain presumed fact. However,
when such a conclusion has been drawn, the
party, against which a certain presumed fact is
exercised bears the burden of proving it. If such
a party wants to challenge this provisional
conclusion, they have to provide evidence to
make a reasonable conclusion about the
existence of the presumed fact (Wodage, 2014).
Evidential presumptions. The jury is required to
draw a conclusion based on the proven
underlying fact. After establishing the underlying
fact the jury must draw a conclusion about the
existence of a presumed fact unless the opposite
is proven. The conclusion remains unchanged in
the absence of contrary evidence. This means
that the party against whom such a conclusion
has been drawn, must provide sufficient evidence
to cast doubt on the credibility of the presumed
fact since, otherwise, the jury must uphold the
conclusion made. The presumption ceases to
operate only if such a party presents some
rebutting evidence that casts doubt on the
presumed fact (Wodage, 2014).
Persuasive presumption is a rule which shifts the
burden of proof onto a party after certain
underlying facts have been proven or recognized.
The underlying facts give rise to a presumed fact,
and the party must prove the opposite. The jury
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is required to draw a conclusion on the grounds
of a proven underlying fact until such a
conclusion is rebutted by the challenging party.
In such cases the party, against whom such a
conclusion has been drawn, bears the burden of
proof only regarding the presumed fact. If such a
party wants to avoid losing in this presumed fact
or in the entire case, depending on the
circumstances, they have to prove the absence of
the presumed fact. It is not enough only to cast a
doubt on the credibility of the presumed fact. The
party has to persuade based on the balance of
probabilities that their position regarding such a
fact is credible. For such a party, it is not
sufficient to merely cast doubt on the truth of the
presumed fact. They must convince based on a
balance of probabilities that their position
regarding such a fact is true (Wodage, 2014).
Conclusions
A presumption as a means of proof is impossible
without the presence of two facts – a basic
(underlying) one and a presumed one, which are
linked by a cause-and-effect relationship.
Presumptions serve as a tool for procedural
economy, as they relieve the parties involved in
criminal proceedings from the necessity to prove
certain (presumed) facts. On the other hand, legal
presumptions complicate the search for truth in
criminal proceedings.
Criminal procedure science of the European
states distinguishes between legal and factual
presumptions. In turn, the first ones can be
rebutted and unrebutted. In national legislations
of the states with continental legal systems the
presumptions may be established which transfer
the burden of proof on certain issues to the
suspect or accused. According to the European
Court of Human Rights (ECtHR), the European
Convention on Human Rights does not prohibit
the use of legal or factual presumptions, but
within certain limits.
According to the doctrine of criminal procedure
and judicial practice of the USA, a presumption
is defined as a conclusion which does not place
the burden of proof on the prosecution and the
jury are not obliged to adhere to it. Particularly,
the court is not entitled to instruct the jury on
establishing a presumed fact that goes against the
defendant. Two types of presumptions are
distinguished – permissive presumptions and
mandatory presumptions. The use of the latter in
accordance with the legal positions of the
Supreme Court of the USA may violate the rights
of the defendant to due process.
Bibliographic references
Case of Phillips v. United Kingdom. Application
No. 41087/98 European Court of Human
Rights. (2001). Available online. In:
https://rm.coe.int/09000016806ebe19
Case of Salabiaku v. France. (Soliciteud No.
10519/83). European Court of Human Rights
(1988). Available online. In:
https://hudoc.echr.coe.int/eng#{%22itemid%
22:[%22001-57570%22]}
Graham, M. H. (2009). Burden of Proof and
Presumptions in Criminal Cases. Criminal
Law Bulletin, 44(16). Available online:
https://papers.ssrn.com/sol3/papers.cfm?abst
ract_id=1347127
Jacobson, S. L. (1987). Mandatory and
Permissive Presumptions in Criminal Cases:
The Morass Created by Allen. University of
Miami Law Review, 42, pp. 1009-1032.
Kabore, S. M. (2017). Evidence in criminal
proceedings. Nazi Boni University in Bobo.
Available online. In:
https://revuejuris.net/wp-
content/uploads/2019/12/document-final.pdf
Law of Ukraine No. 4651-VI. Criminal
Procedure Code of Ukraine. Official Web site
of the Verkhovna Rada of Ukraine, April 13,
2012. Available online. In:
https://zakon.rada.gov.ua/laws/show/4651-
17#Text
Mekki, M. (s.f). Proof and truth in France,
Netherlands/Belgium Days – La Prouve.
Brussels: Noisy. 813-847 Available online
In:
https://mustaphamekki.openum.ca/files/sites/
37/2015/07/60_T4_france.pdf
Mueller, C.B., Kirkpatrick, L., & Richter, L.
(2018). «Presumptions» in Criminal Cases.
GWU Law School Public Law Research
Paper No. 2018-53. 6th ed. Wolters Kluwer.
Available online. In:
https://papers.ssrn.com/sol3/papers.cfm?abst
ract_id=3275018
Rudzkis, T., & Panomariovas, A. (2016). Legal
presumptions in the context of contemporary
criminal justice: Formulation of a
paradigm. Hungarian Journal of Legal
Studies, 57(4), 462-476.
Waltoś, S., & Hofmański, P. (2020). Criminal
trial. System outline. Fifteenth edition.
Warsaw: Wolters Kluwer. Available online
In: https://www.naukowa.pl/Ksiazki/proces-
karny-zarys-systemu-1637342
Wodage, W. Y. (2014). Burdens of Proof,
Presumptions and Standards of Proof in
Criminal Cases. Mizan Law Review, 8(1),
252-270.