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OVERCOMING PRESUMPTIONS IN THE COURT CASELAW TO USE, DEFEND YOURSELF, CLAIM YOUR RIGHTS

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  • HERALD
    ... From: A Voice for Children To: A Voice for Children Sent: Friday, November 05, 2004 1:14 AM Subject: OVERCOMING PRESUMPTIONS IN THE COURT CASELAW TO USE,
    Message 1 of 1 , Nov 8 12:56 AM
       
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      Sent: Friday, November 05, 2004 1:14 AM
      Subject: OVERCOMING PRESUMPTIONS IN THE COURT CASELAW TO USE, DEFEND YOURSELF, CLAIM YOUR RIGHTS

      From: veritas@...

      Conclusive presumption. A conclusive presumption is one in which proof of basic fact renders the existence of the presumed fact conclusive and irrebutable. Few in number and often statutory, the majority view is that a conclusive presumption is in reality a substantive rule of law, not a rule of evidence. An artificially compelling force which requires trier of fact to find such fact as is conclusively presumed and which renders evidence to the contrary as inadmissible. Sometimes referred to as irrebutable presumption. Cf. Argumentum ab auctoritate est fortissimum in lege; Binding authority; Exceptio rei judicatæ; Interest reipublicæ res judicatas non rescindi; Nil sine prudenti fecit ratione vetustas; Precedent; Judicial estoppel; Natural presumption; Presumption; Res judicata; Stare decisis; Thing adjudged; ORS 40.135 Rule 311; U.C.C. § 1-201(31); U.L.A. § 1-201:13;

      Natural presumption. Evidence. Presumptions of fact; those which depend upon their own form and efficacy in generating belief or conviction in the mind, as derived from those connections which are pointed out by experience; they are independent of any artificial connections, and differ from mere presumptions of law in this essential respect, that the latter depend on and are a branch of the particular system of jurisprudence to which they belong; but mere natural presumptions are derived wholly by means of the common experience of mankind, without the aid or control of any particular rule of law, but simply from the course of nature and the habits of society. These presumptions fall within the exclusive province of the jury, who are to pass upon the facts. 3 Bouv. Inst. n. 3064; Greenleaf’s on Ev. § 44. Cf. Conclusive presumption; Lex contra id quod præsumit, probationem non recipit {The law admits no proof against that which it presumes}; Presumption; Federal Evidence Rule 103; ORS 40.135 Rule 311;

      Nobiliores et benigniores presumptiones in dubiis sunt præferendæ.

      When doubts arise, the most generous and benign presumptions are to be preferred. A civil-law maxim.

      Presumption. Evidence. An inference as to the existence of one fact, from the existence of some other fact, founded on a previous experience of their connection. 3 Stark. Ev. 1234; 1 Phil. Ev. 116; Gilb. Ev. 142; Poth. Tr. des. Ob. part. 4, c. 3, s. 2, n. 840. Or it, is an opinion, which circumstances, give rise to, relative to a matter of fact, which they are supposed to attend. Menthuel sur les Conventions, liv. 1, tit. 5. To constitute such a presumption, a previous experience of the connection between the known and inferred facts is essential, of such a nature that as soon as the existence of the one is established, admitted or assumed, an inference as to the existence of the other arises, independently of any reasoning upon the subject. It follows that an inference may be certain or not certain, but merely, probable, and therefore capable of being rebutted by contrary proof. In general a presumption is more or less strong according as the fact presumed is a necessary, usual or infrequent consequence of the fact or facts seen, known, or proven. When the fact inferred is the necessary consequence of the fact or facts known, the presumption amounts to a proof when it is the usual, but not invariable consequence, the presumption is weak; but when it is sometimes, although rarely, the consequence of the fact or facts known, the presumption is of no weight. Menthuel sur les Conventions, tit. 5. See Domat, liv. 9, tit. 6 Dig. de probationibus et præsumptionibus. Presumptions are either legal and artificial, or natural. Legal or artificial presumptions are such as derive from the law, a technical or artificial, operation and effect, beyond their mere natural tendency to produce belief, and operate uniformly, without applying the process of reasoning on which they are founded, to the circumstances of the particular case. For instance, at the expiration of twenty years, without payment of interest on a bond, or other acknowledgment of its existence, satisfaction is to be presumed; but if a single day less than twenty years has elapsed, the presumption of satisfaction from mere lapse of time, does not arise; this is evidently an artificial and arbitrary distinction. 4 Greenl. 270; 10 John. R. 338; 9 Cowen, R. 653; 2 M'Cord, R. 439; 4 Burr. 1963; Lofft, 320; 1 T. R. 271; 6 East, R. 215; 1 Campb. R. 29. An example of another nature is given under this head by the civilians. If a mother and her infant at the breast perish in the same conflagration, the law presumes that the mother survived, and that the infant perished first, on account of its weakness, and on this ground the succession belongs to the heirs of the mother. See Death, 9 to 14. Legal presumptions are of two kinds: first, such as are made by the law itself, or presumptions of mere law; secondly, such as are to be made by a jury, or presumptions of law and fact. 1st. Presumptions of mere law, are either absolute and conclusive; as, for instance, the presumption of law that a bond or other specialty was executed upon a good consideration, cannot be rebutted by evidence, so long as the instrument is not impeached for fraud; 4 Burr. 2225; or they are not absolute, and may be rebutted evidence; for example, the law presumes that a bill of exchange was accepted on a good consideration, but that presumption may be rebutted by proof to the contrary. 2d. Presumptions of law and fact are such artificial presumptions as are recognized and warranted by the law as the proper inferences to be made by juries under particular circumstances; for instance, an unqualified refusal to deliver up the goods on demand made by the owner, does not fall within any definition of a conversion, but inasmuch as the detention is attended with all the evils of a conversion to the owner, the law makes it, in its effects and consequences, equivalent to a conversion, by directing or advising the jury to infer a conversion from the facts of demand and refusal. Natural presumptions depend upon their own form and efficacy in generating belief or conviction on the mind, as derived from these connections which are pointed out by experience; they are wholly independent of any artificial connections and relations, and differ from mere presumptions of law in this essential respect, that those depend, or rather are a branch of the particular system of jurisprudence to which they belong; but mere natural presumptions are derived wholly by means of the common experience of mankind, from the course of nature and the ordinary habits of society. Vide, generally, Stark. Ev. h. t.; 1 Phil. Ev. 116; Civ. Code of Lo. 2263 to 2267; 17 Vin. Ab. 567; 12 Id. 124; 1 Supp. to Ves. jr. 37, 188, 489; 2 Id. 51, 223, 442; Bac. Ab. Evidence, H; Arch. Civ. Pl. 384; Toull. Dr. Civ. Fr. Liv. 3, t. 3, o. 4, s. 3; Poth. Tr. des Obl. part 4, c. 3, s. 2; Matt. on Pres.; Gresl. Eq. Ev. pt. 3, c. 4, 363; 2 Poth. Ob. by Evans, 340; 3 Bouv. Inst. n. 3058, et seq. A presumption is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted. Cf. Ambiguis casibus semper præsumitur pro rege; Conclusive presumption; Disputable presumption; Irrebuttable presumption; Lex contra id quod præsumit, probationem non recipit; Natural presumption; Præsumptio; Rebuttable presumption; Stabit præsumptio donec probetur in contrarium;

      Violent presumption; Federal Evidence Rule 301; ORS 40.120 to ORS 40.135; U.C.C. § 1-201(31); U.L.A. § 1-201:13;

      ORS 40.135 Rule 311 (Presumptions). (1) The following are presumptions: (a) A person intends the ordinary consequences of a voluntary act. [U.S. v. Ross, 626 F.2d 77 (9th Cir. 1980);] (b) A person takes ordinary care of the person's own concerns. (c) Evidence willfully suppressed would be adverse to the party suppressing it. (d) Money paid by one to another was due to the latter. (e) A thing delivered by one to another belonged to the latter. (f) An obligation delivered to the debtor has been paid. (g) A person is the owner of property from exercising acts of ownership over it or from common reputation of the ownership of the person. (h) A person in possession of an order on that person, for the payment of money or delivery of a thing, has paid the money or delivered the thing accordingly. (i) A person acting in a public office was regularly appointed to it, (j) Official duty has been regularly performed. (k) A court, or judge acting as such, whether in this state or any other state or country, was acting in the lawful exercise of the jurisdiction of the court. (l) Private transactions have been fair and regular. (m) The ordinary course of business has been followed. (n) A promissory note or bill of exchange was given or endorsed for a sufficient consideration. (o) An endorsement of a negotiable promissory note, or bill of exchange, was made at the time and place of making the note or bill. (p) A writing is truly dated. (q) A letter duly directed and mailed was received in the regular course of the mail. (r) A person is the same person if the name is identical. (s) A person not heard from in seven years is dead. (t) Persons acting as copartners have entered into a contract of copartnership. (u) A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage. (v) A child born in lawful wedlock is legitimate. (w) A thing once proved to exist continues as long as is usual with things of that nature. (x) The law has been obeyed. (y) An uninterrupted adverse possession of real property for 20 years or more has been held pursuant to a written conveyance. (z) A trustee or other person whose duty it was to convey real property to a particular person has actually conveyed it to the person, when such presumption is necessary to perfect the title of the person or the person's successor in interest. (2) A statute providing that a fact or group of facts is prima facie evidence of another fact establishes a presumption within the meaning of this section. [Cf. U.C.C. § 1-201:31];

      BGJ Assoc., LLC v. Wilson, No. B143157 (Cal.App. 2nd 12/03/2003) (Accordingly, "[a] transaction between an attorney and client which occurs during the relationship and which is advantageous to the attorney is presumed to violate that fiduciary duty and to have been entered into without sufficient consideration and under undue influence." (Lewin v. Anselmo (1997) 56 Cal.App.4th 694, 701.); (Phillips v. Sanger Lumber Co. (1900) 130 Cal. 431, 433; see Rest.2d Contr., § 177, subd. (2) ["If a party’s manifestation of assent is induced by undue influence by the other party, the contract is voidable by the victim."].) http://caselaw.lp.findlaw.com/data2/californiastatecases/b143157.pdf

      Blackhawk-Perry Corp. v. C.I.R., 182 F.2d 319 (1950) (A taxpayer, as well as the commissioner, is presumed to know the law.);

      Busquets-Ivars v. Ashcroft, No. 02-70643 (9th Cir. 06/24/2003) (Rosenthal v. Walker, 111 U.S. 185, (1884), establishes the standards for mailings, "The rule is well settled that if a letter properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed, from the known course of business in the post-office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed." While it is presumed that a properly-addressed piece of mail placed in the care of the Postal Service has been delivered, no such presumption of delivery exists for certified mail when the requested return receipt is not received by the sender.") (emphasis added). http://caselaw.lp.findlaw.com/data2/circs/9th/0270643p.pdf

      Church v. Woods, 00P-1599; A116435 (Or. 10/15/2003) (See Sheppard v. Weekly, 72 Or App 86, 92, 695 P2d 53 (1985) ("In the absence of contradictory evidence, it is presumed that co-owners enjoy equal rights to use and control the property, independently of the other owner's knowledge or consent."). The trial court erred in concluding otherwise.); http://www.publications.ojd.state.or.us/A116435.htm

      Community Dental Servs. v. Tani, No. 00-056450 (9th Cir. 03/07/2002) (Because the client is presumed to have voluntarily chosen the lawyer as his representative and agent, he ordinarily cannot later avoid accountability for negligent acts or omissions of his counsel. Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962); see also Pioneer, 507 U.S. at 396-97.); http://caselaw.lp.findlaw.com/data2/circs/9th/0056450p.pdf

      California Evidence Code, § 669(a) (The failure of a person to exercise due care is presumed if: (1) He violated a statute, ordinance, or regulation of a public entity; (2) The violation proximately caused death or injury to person or property; (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.); A violation of the rules of professional conduct is unquestionably a violation of the regulations of a public entity, and using the rules to establish breach is no different in a legal malpractice case than in an automobile accident case where the defendant is accused of speeding. http://landru.leg.state.or.us/ors/112.html

      Evans v. Marvin, 76 Or. 540, 148 P 119 (1915) (" . . . the constitutional rule that justices courts are of limited jurisdiction. ...their judgments must be sustained affirmatively by positive proof that they had jurisdiction of the cases they attempt to decide.");

      Federal Deposit Ins. Corp. v. Pendleton, D.C.Ky., 29 F.Supp. 779, 782, 783 (Under this doctrine a principal is charged with the knowledge of his agent. It is based on the presumption that by reason of the relationship between an agent and his principal the principal is presumed to have been told everything the agent has done and presumed to have known of his actions and promises.); sed vide: Federal Deposit Insurance Corp. v. Smith, USDC CV-93-01112-HJF; USCA 95-35312; SC S43258 (Or. 04/22/1999) (Oregon courts long have recognized such an "adverse interest" exception. As the court stated in Saratoga Inv. Co. v. Kern, 76 Or 243, 254, 148 P 1125 (1915), a corporation is charged with knowledge of what its agent knows, unless "the agent's relations to the subject matter are so adverse as to practically destroy the relationship, as when the agent is acting in his own interest and adversely to that of his principal, or is secretly engaged in attempting to accomplish a fraud which would be defeated by a disclosure to his principal." (Emphasis added.) See also Restatement, Agency, § 279 (1958) ("The principal is not affected by the knowledge of an agent as to matters involved in a transaction in which the agent deals with the principal * * * as * * * an adverse party."); http://159.121.112.45/S43258.htm  

      Hale v. Henkel, 201 U.S. 43, 74, 26 S.Ct. 370, 50 L.Ed. 652 (1906) (On the other hand, the corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the state and the limitations of its charter. Its powers are limited by law. It can make no contract not authorized by its charter. Its rights to act as a corporation are only preserved to it so long as it obeys the laws of its creation. There is a reserved right in the legislature to investigate its contracts and find out whether it has exceeded its power.) http://laws.findlaw.com/us/201/43.html aff’d. Wilson v. U.S., 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911) http://laws.findlaw.com/us/221/361.html

      Harris v. Carter, No. 02-3114 (6th Cir. 07/29/2003) (In the context of an alleged conflict of interest in representation, the test for a Sixth Amendment violation has been modified by clearly established Supreme Court precedent. In cases where a defendant or defense counsel makes a timely objection to joint representation based on an asserted conflict of interests and the trial court fails to inquire as to whether the conflict warrants the appointment of separate counsel, prejudice is presumed and reversal is automatic. Holloway v. Arkansas, 435 U.S. 475, 484-88 (1978); see also Cuyler v. Sullivan, 446 U.S. 335, 346 (1980) ("Holloway requires state trial courts to investigate timely objections to multiple representation."). In cases where neither the defendant nor defense counsel makes a timely objection to joint representation, prejudice is presumed only if the defendant demonstrates on appeal that "an actual conflict of interest adversely affected his lawyer’s performance." Cuyler, 446 U.S. at 348-350; see also Riggs v. United States, 209 F.3d 828, 831 n.1 (6th Cir. 2000) ("[T]his [C]ircuit applies the Cuyler analysis to all Sixth Amendment conflict-of-interest claims. One exception, not applicable here, is in those cases where the trial court was informed by counsel or the defendant of a potential conflict of interest but failed to inquire into that conflict: in such cases, prejudice is presumed and reversal is automatic.") (internal citation omitted). http://laws.findlaw.com/6th/03a0255p.html

      Heiner v. Donnan, 285 U.S. 312 (1932) (...it is hard to see how a statutory rebuttable presumption is turned from a rule of evidence or of substantive law as the result of the later statute making it conclusive. In both cases it is a substitute for proof; in the one, open to challenge and disproof, and in the other conclusive. However, whether the latter presumption be treated as a rule of evidence or of substantive law, it constitutes an attempt, by legislative fiat, to enact into existence a fact which here does not, and cannot be made, to exist in actuality, and the result is the same..." This court has held more than once that a statute creating a presumption which operates to deny a fair opportunity to rebut violates the due process clause of the Fourteenth Amendment. For example, a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by a direct enactment.); http://laws.findlaw.com/us/285/312.html

      In re Devers, OSB 93-175, 94-96; SC S39997 (Or. 01/22/1999) (The accused, like everyone else, is presumed to know the law. See Bartz v. State of Oregon, 314 Or 353, 359-60, 839 P2d 217 (1992) (persons presumed to know legislative enactments relevant to them); http://www.publications.ojd.state.or.us/S39997.htm aff’d. In re Virgil E. Dugger, OSB 98-52, 00-65; SC S48634 (Or. 09/26/2002) (First, the accused, like everyone else, is presumed to know the law.); http://www.publications.ojd.state.or.us/S48634.htm

      Jessen v. Hartford Cas. Ins. Co., No. F041425 (Calif. App. 08/25/2003) ("The ‘substantial relationship’ test mediates between two interests that are in tension in such a context -- the freedom of the subsequent client to counsel of choice, on the one hand, and the interest of the former client in ensuring the permanent confidentiality of matters disclosed to the attorney in the course of the prior representation, on the other. Where the requisite substantial relationship between the subjects of the prior and the current representations can be demonstrated, access to confidential information by the attorney in the course of the first representation (relevant, by definition, to the second representation) is presumed and disqualification of the attorney’s representation of the second client is mandatory; ...." (Flatt, supra, 9 Cal.4th at p. 283.)4); http://caselaw.lp.findlaw.com/data2/californiastatecases/f041425.pdf

      Lee v. Gregory, No. 02-57132 (9th Cir. 04/07/2004) (A police officer is "responsible for the natural consequences of his actions." Malley v. Briggs, 475 U.S. 335, 345 (1986).); http://caselaw.lp.findlaw.com/data2/circs/9th/0257132p.pdf

      Nickel v. Bank of America, No. 01-15452 (9th Cir. 05/17/2002; 06/19/2002) (The elementary rule of restitution is that if you take my money and make money with it, your profit belongs to me. See American Law Institute, Restatement of Restitution § 1 (1937). The district court obscured this rule in two ways. First, the court relied on Probate Code § 16004, which reads: (c) A transaction between the beneficiary which occurs during the existence of the trust or while the trustee’s influence with the beneficiary remains and by which the trustee obtains an advantage from the beneficiary is presumed to be a violation of the trustee’s fiduciary duties. This presumption is a presumption affecting the burden of proof. This subdivision does not apply to the provisions of an agreement between a trustee and a beneficiary relating to the hiring or compensation of the trustee.); http://caselaw.lp.findlaw.com/data2/circs/9th/0115452p.pdf

      O'Dwyer v. C.I.R., 266 F.2d 575 (4th Cir. 1959) (I.R.S. deficiency is presumed correct and burden in the Tax Court is upon taxpayer to prove it incorrect);

      People v. Ryan, 353 N.E.2d 334, 41 N.Y.2d 634 (1977) (That a man is presumed to intend the natural consequence of his act is not the test for inferring intent under the larceny by false promise statute.);

      Schikore v. BankAmerica Supplemental Retirement Plan, Nos. 99-16952 99-17017 (9th Cir. 10/16/2001) (The mailbox rule provides that the proper and timely mailing of a document raises a rebuttable presumption that the document has been received by the addressee in the usual time. It is a settled feature of the federal common law. Hagner v. United States, 285 U.S. 427, 430 (1932); Rosenthal v. Walker, 111 U.S. 185, 193 (1884); Lewis v. United States, 144 F.3d 1220, 1222 (9th Cir. 1998)); http://caselaw.lp.findlaw.com/data2/circs/9th/9916952p.pdf

      Sparf v. United States, 156 U.S. 51 (1895) (On this, and on every other, occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for, as on the one hand, it is presumed that juries are best judges of facts, it is, on the other hand, presumable that the courts are the best judges of the law. But still both objects are lawfully within your power of decision.'); http://laws.findlaw.com/us/156/51.html

      State v. Garrett, 281 Or 281, 574 P2d 639 (1978) (Literal identity of names is necessary to trigger presumption of identity of persons so as to present prima facie case, and mere similarity of names, without additional corroborating evidence, will not support finding of identity of persons.);

      State v. Officer, 4 Or. 180 (1871) (The power of the Municipal or District Court is that of the old "justice of the peace" courts which were courts of "limited and special jurisdiction.) (Inferior tribunals are subject to the supervisory control (judicial powers), and must show affirmative proof on the face on the inferior tribunal record to sustain a conviction. "If the court is . . . of some special statutory jurisdiction it is as to such proceedings an inferior court, and not aided by presumption of jurisdiction.) Cf. Norman v. Zeiber, 3 Or 198);

      Strickland v. Washington, 466 U.S. 668, 692 (1984) (prejudice is presumed when there is an "[a]ctual or constructive denial of the assistance of counsel altogether"); http://laws.findlaw.com/us/466/668.html

      U.S. v. Recio, No. 01-1184 (USSC 01/21/2003) (See Lewis v. United States, 385 U.S. 206, 208-209. Ninth Circuit precedent, whereby the language "the defendant ... defeated its purpose" in United States v. Krasn, 614 F. 2d 1229, 1236, was changed to "a conspiracy is presumed to continue until there is ... defeat of the [conspiracy's purpose]" in United States v. Bloch, 696 F. 2d 1213, 1215 (emphasis added), may help to explain the Cruz rule's origin.); http://laws.findlaw.com/us/000/01-1184.html

      U.S. v. Skurdal, No. 01-35959 (9th Cir. 08/27/2003) (See Strickland, 466 U.S. at 692 (prejudice is presumed when there is an "[a]ctual or constructive denial of the assistance of counsel altogether"); Penson, 488 U.S. at 88-89 ("[T]he presumption of prejudice must extend as well to the denial of counsel on appeal."); http://caselaw.lp.findlaw.com/data2/circs/9th/0135959p.pdf

      United States v. Smith, No. 03-30482 (9th Cir. 10/15/2004) (As this quotation makes clear, § 1513(b)(2) does not make situs an element of the offense. Accordingly, § 1513(b)(2) is a law of nationwide applicability and is presumed to apply to crimes committed by and against Indians in Indian country.5 See Begay, 42 F.3d at 499.); http://caselaw.lp.findlaw.com/data2/circs/9th/0330482p.pdf

      U.S. v. Wong Kim Ark, 169 U.S. 649, 654 (1898) (The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it.); http://laws.findlaw.com/us/169/649.html

      Wemark v. State of Iowa, No. 02-1755 (8th Cir. 03/17/2003) (Relying on Cuyler v. Sullivan, 446 U.S. 335 (1980), Wemark argued that because his counsel had been burdened by an "actual conflict," he was entitled to habeas relief without having to demonstrate prejudice. See Cuyler, 446 U.S. at 349-50; see also Strickland, 446 U.S. at 692 ("Prejudice is presumed . . . if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer's performance.’" (quoting Cuyler, 446 U.S. at 350, 348)). http://caselaw.lp.findlaw.com/data2/circs/8th/021755p.pdf

      Young v. United States, 535 U.S. 43 (2002) (Congress is presumed to draft limitations periods in light of the principle that such periods are customarily subject to equitable tolling unless tolling would be inconsistent with statutory text.); http://laws.findlaw.com/us/000/00-1567.html

      ORS 30.178(1) (Liability of employer for disclosing information about employee to new employer; no action based on compelled self-publication) (An employer who discloses information about a former employee's job performance to a prospective employer of the former employee upon request of the prospective employer or of the former employee is presumed to be acting in good faith and, unless lack of good faith is shown by a preponderance of the evidence, is immune from civil liability for such disclosure or its consequences.);

      ORS 40.135 (Rule 311) (r) A person is the same person if the name is identical.

      ORS 40.225 Rule 503(3) (Lawyer-client privilege) (The person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.);

      ORS 40.255 Rule 505(2) (Husband-wife privilege) (In any civil or criminal action, a spouse has a privilege to refuse to disclose and to prevent the other spouse from disclosing any confidential communication made by one spouse to the other during the marriage. The privilege created by this subsection may be claimed by either spouse. The authority of the spouse to claim the privilege and the claiming of the privilege is presumed in the absence of evidence to the contrary.);

      ORS 44.370 (Witness presumed to speak truth; jury judges of credibility) (A witness is presumed to speak the truth. This presumption, however, may be overcome by the manner in which the witness testifies, by the character of the testimony of the witness, or by evidence affecting the character or motives of the witness, or by contradictory evidence. Where the trial is by the jury, they are the exclusive judges of the credibility of the witness.);

      ORS 73.0308(1) (Proof of signatures and status as holder in due course) (In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings. If the validity of a signature is denied in the pleadings, the burden of establishing validity is on the person claiming validity, but the signature is presumed to be authentic and authorized unless the action is to enforce the liability of the purported signer and the signer is dead or incompetent at the time of trial of the issue of validity of the signature. If an action to enforce the instrument is brought against a person as the undisclosed principal of a person who signed the instrument as a party to the instrument, the plaintiff has the burden of establishing that the defendant is liable on the instrument as a represented person under ORS 73.0402 (1).

      ORS 73.0419(3) (Instruments signed for accommodation) (A person signing an instrument is presumed to be an accommodation party and there is notice that the instrument is signed for accommodation if the signature is an anomalous indorsement or is accompanied by words indicating that the signer is acting as surety or guarantor with respect to the obligation of another party to the instrument.);

      ORS 151.505(2) (Authority of court to order repayment of costs related to provision of appointed counsel) (Costs repayable under this section include a reasonable attorney fee for counsel appointed to represent the person and a reasonable amount for expenses authorized under ORS 135.055. A reasonable attorney fee is presumed to be a reasonable number of hours at the hourly rate authorized by the State Court Administrator under ORS 151.430.);

      ORS 161.465(2) [1971 c.743 s.62; 1973 c.836 s.340] (Duration of conspiracy) (Abandonment is presumed if neither the defendant nor anyone with whom the defendant conspired does any overt act in pursuance of the conspiracy during the applicable period of limitation.);

      ORS 161.665(1) (Costs) (Except as provided in ORS 151.505, the court, only in the case of a defendant for whom it enters a judgment of conviction, may include in its sentence thereunder a provision that the convicted defendant shall pay as costs expenses specially incurred by the state in prosecuting the defendant. Costs include a reasonable attorney fee for counsel appointed pursuant to ORS 135.045 or 135.050 and a reasonable amount for expenses approved under ORS 135.055. A reasonable attorney fee is presumed to be a reasonable number of hours at the hourly rate authorized by the State Court Administrator under ORS 151.430.);

      ORS 398.414 [1961 c.454 s.206] (Presumption of jurisdiction) (The jurisdiction of the military courts and boards established by this chapter shall be presumed and the burden of proof rests on any person seeking to oust those courts or boards of jurisdiction in any action or proceeding.);

      ORS 810.250(3) [1983 c.338 §167] (Use of traffic control device placement or legibility as evidence) (When a traffic control device is placed in position approximately conforming to the requirements of the traffic regulations or other laws of this state, the device is presumed to have been placed by an official act or at the direction of lawful authority unless the contrary is established by competent evidence.);

      26 CFR 1.871-4 (Proof of Residence Of Aliens) (b) Nonresidence Presumed -- An alien, by reason of his alienage, is presumed to be a nonresident alien.); Cf. 26 U.S.C. § 871;

      42 U.S.C. § 11135(b) (Duty of hospitals to obtain information) (Failure to obtain information: With respect to a medical malpractice action, a hospital which does not request information respecting a physician or practitioner as required under subsection (a) of this section is presumed to have knowledge of any information reported under this subchapter to the Secretary with respect to the physician or practitioner.);

      U.C.C. § 1-206 (Presumptions) (Whenever [the Uniform Commercial Code] creates a "presumption" with respect to a fact, or provides that a fact is "presumed," the trier of fact must find the existence of the fact unless and until evidence is introduced that supports a finding of its nonexistence.);

      Model Penal Code, Section 251.4(2)(e) (Obscenity) (A person who disseminates or possesses obscene material in the course of his business is presumed to do so knowingly or recklessly.);

      Cf. Tot v. U.S., 319 U.S. 463, (1943); U.S. v. Bowen, 414 F2d 1268, U.S. v. Simmons, 416 F2d 33, (1973); U.S. v. Perry, 474 F2d 983; U.S. v. Lake, 482 F2d 146, (1973); U.S. v. Belgrade, 484 F2d 915 (1973);

      Cf. Abandonment is presumed if neither the defendant nor anyone with whom the defendant conspired does any overt act in pursuance of the conspiracy during the applicable period of limitation.

      Every man is presumed to do his duty and in that case they who affirm he did not, must prove it. B. N. P. 298; 1 Roll. R. 83; Comb. 57; 3 B.& P. 307; 1 Mass. R. 56.

      This proof is usually made out by the testimony of witnesses, but it is presumed it might be made out by writings; as if the party could prove by a record properly authenticated, that on the day or at the time in question, he was in another place.

      An agreement to something that has been done before. It is either express, where it is openly declared; or implied, where it is presumed by law. For instance, when a conveyance is made to a man, his assent to it is presumed, for the following reasons; cause there is a strong intendment of law, that it is for a person's benefit to take, and no man can be supposed to be unwilling to do that which is for his advantage.

      An implied assumpsit is where one has not made any formal promise to do an act or to pay a sum of money to another, but who is presumed from his conduct to have assumed to do what is in point of law just and right; for, 1st, it is to be presumed that no one desires to enrich himself at the expense of another; 2d, it is a rule that he who desires the antecedent, must abide by the consequent; as, if I receive a loaf of bread or a newspaper daily sent to my house without orders, and I use it without objection, I am presumed to have accepted the terms upon which the person sending it had in contemplation, that I should pay a fair price for it; 3d, it is also a rule that every one is presumed to assent to what is useful to him.

      Error of law. As the law is, or which is the same thing, is presumed to be certain and definite, every man is bound to understand it, and an error of law will not, in general, excuse a man for its violation. A contract made under an error in law, is, in general binding, for were it not so, error would be urged in almost every case. 2 East, 469; see 6 John. Ch. R. 166; 8 Cowen, 195; 2 Jac. & Walk. 249; 1 Story, Eq. Jur. 156; 1 Younge & Coll. 232; 6 B. & C. 671; Bowy. Com. 135; 3 Sav. Dr. Rom. App. viii. But a foreign law will for this purpose be considered as a fact. 3 Shepl. 45; 9 Pick. 112; 2 Ev. Pothier, 369, &c.

      A transaction between the trustee and a beneficiary which occurs during the existence of the trust or while the trustee’s influence with the beneficiary remains and by which the trustee obtains an advantage from the beneficiary is presumed to be a violation of the trustee’s fiduciary duties. This presumption is a presumption affecting the burden of proof.

      In criminal cases, as every man is presumed to be innocent until the contrary is proved, the burden of proof rests on the prosecutor, unless a different provision is expressly made by statute. 12 Wheat.

      An evidence of debt found in the debtor's possession is presumed to be paid {Chirographum apud debitorem repertum præsumitur solutum};

      An evidence of debt not existing is presumed to have been discharged {Chirographum non extans præsumitur solutum};

      Constraint; compulsion; force. It is positive or presumed. Positive or direct coercion takes place when a man is by physical force compelled to do an act contrary to his will; for example, when a man falls into the hands of the enemies of his country, and they compel him, by a just fear of death, to fight against it. It is presumed where a person is legally under subjection to another, and is induced, in consequence of such subjection, to do an act contrary to his will.

      Once the government shows a member joined the conspiracy, their continued participation in the conspiracy is presumed until the object of the conspiracy has been achieved. See, e.g., United States v. Juodakis, 834 F.2d 1099, 1103 (1st Cir. 1987); United States v. Barsanti, 943 F.2d 428, 437 (4th Cir. 1991), cert. denied, 112 S. Ct. 1474 (1992); United States v. Krasn, 614 F.2d 1229, 1236 (9th Cir. 1980); United States v. Finestone, 816 F.2d 583, 589 (11th Cir.), cert. denied, 484 U.S. 948 (1987).

      In general, when a party accused of a crime contradicts himself, it is presumed he does so because he is guilty for truth does not contradict itself, and is always consistent, whereas falsehood is in general inconsistent and the truth of some known facts will contradict the falsehood of those which are falsely alleged to be true.

      Again, the vendor having a knowledge of a defect in a commodity which cannot be obvious to the buyer, does not disclose it, or, if apparent, uses an artifice and conceals it, he has been guilty of a fraudulent misrepresentation for there is an implied condition in every contract that the parties to it act upon equal terms, and the seller is presumed to have assured or represented to the vendee that he is not aware of any secret deficiencies by which the commodity is impaired, and that he has no advantage which himself does not possess. But in all these cases the party injured must have no means of detecting the fraud, for if he has such means his ignorance will not avail him in that case he becomes the willing dupe of the other's artifice, and volenti non fit injuria.

      No judge is presumed to have any doubt on a question of law, and he cannot therefore refuse to give a judgment on that account. 9 M. R. 355; Merlin, Repert. h. t.; Ayliffe's Pand. b. 2, t. 17; Dig. lib. 34, t. 5; Code, lib. 6, t. 38. Indeed, in some countries, in China, for example, ignorance of the law in a judge is punishable with blows. Penal Laws of China, B. 2, s. 61.

      A man is presumed to be simple who makes a mistake in his own name {Fatuus præsumitur qui in proprio nomine errat};

      Every man is presumed to believe in God, and he who opposes a witness on the ground of his unbelief is bound to prove it. 3 Bouv. Inst. u. 3180.

      In general everyone is presumed innocent until guilt has been proved; but in some cases the presumption of guilt overthrows that of innocence; as, for example, where a party destroys evidence to which the opposite party is entitled. The spoliation of papers, material to show the neutral character of a vessel, furnishes strong presumption against the neutrality of the ship. 2 Wheat. 227.

      Ignorance of law, consists in the want of knowledge of those laws which it is our duty to understand, and which every man is presumed to know.

      Every witness is liable to be impeached as to his character for truth; and, if his general character is good, he is presumed, at all times, to be ready to support it. 3 Bouv. Inst. n. 3224, et seq.

      No one is presumed to trifle at the point of death {Nemo præsumitur ludere in extremis};

      In propria persona. In his own person. It is a rule in pleading that pleas to the jurisdiction of the court must be pleaded in propria persona, because, if pleaded by attorney, they admit the jurisdiction, as an attorney is an officer of the court, and he is presumed to plead after having obtained leave, which admits the jurisdiction. Lawes on Pl. 91. An appearance may be in propria persona, and need not be by attorney. Bouvier’s Law Dictionary, 6th Ed. (C. & P.1856);

      Life is presumed to continue at least till one hundred years. 9 Mart. Lo. R. 257.

      Malice in law. The intentional doing of a wrongful act without just cause or excuse. As distinguished from malice in fact, it is presumed from tortuous acts, deliberately done without just cause, excuse, or justification, which are reasonable calculated to injure another or others.

      The distinctions between manslaughter and murder, consists in the following: In the former, though the act which occasions the death be unlawful, or likely to be attended with bodily mischief, yet the malice, either express or implied, which is the very essence of murder, is presumed to be wanting in manslaughter. 1 East, P. C. 218; Foster, 290.

      No one is presumed to have preferred another’s posterity to his own {Nemo præsumitur alienam posteritatem suæ prætulisse};

      No one is presumed to give {Nemo præsumitur donare};

      No one is presumed to be forgetful of his own eternal welfare, and particularly at the point of death {Nemo præsumitur esse immemor suæ æternæ salutis, et maxime in articulo mortis};

      No one is presumed to trifle at the point of death {Nemo præsumitur ludere in extremis};

      No one is presumed to be bad {Nemo præsumitur malus};

      No man is presumed to do anything against nature. 22 Vin. Ab. 154.

      When the offer has been made, the party is presumed to be willing to enter into the contract for the time limited, and, if the time be not fixed by the offer, then until it be expressly revoked, or rendered nugatory by a contrary presumption. 6 Wend. 103.

      Possessor. He who holds, detains or enjoys a thing, either by himself or his agent, which he claims as his own. In general the possessor of personal chattels is presumed to be the owner; and in case of real estate he has a right to receive the profits, until a title adverse to his possession has been established, leaving him subject to an action for the mesne profits.

      Quality. Persons. The state or condition of a person. Two contrary qualities cannot be in the same person at the same time. Dig. 41, 10, 4. Every one is presumed to know the quality of the person with whom he is contracting. In the United States, the people happily are all upon an equality in their civil and political rights. Cf. Standing; Status;

      He who is once criminal is presumed to be always criminal in the same kind or way {Qui semel est malus, semper præsumitur esse malus in eodem genere};

      Whoever is once bad is presumed to be so always in the same kind of affairs {Semel malus semper præsumitur esse malus in eodem genere};

      Sui juris. Every one of full age is presumed to be sui juris. Story on Ag. p. 10.

      Presumption of correctness.

      U.S. v. Nipper, No. 00-5057, D.C. No. 98-CV-526-K (10th Cir. 02/08/2001) (On appeal, the government first contends that the assessments should be given the usual presumption of correctness based on the government's production of the Certificates of Assessment. This argument ignores the unreported income exception which has been recognized in this court, see McMullin, 948 F.2d at 1192. Without openly disavowing the exception, the government also argues that the Nippers "could not avoid the entry of judgment against them by merely resting on general denials of tax liability or the claim that the Commissioner's assessments were arbitrary." Appellee's Br. at 18. Again, this argument ignores the threshold burden placed on the government by this exception. Without the required minimal evidentiary foundation, the government's assessments "may not be supported even where the taxpayer is silent." Erickson v. Comm'r, 937 F.2d 1548, 1551 (10th Cir. 1991). We fail to see how the Nippers' failure to respond to the government's motion for summary judgment can excuse the government's initial burden in district court to come forward with evidence in support of its claim that Timothy Nipper received unreported income before a presumption of correctness is afforded its assessments.); http://www.kscourts.org/ca10/cases/2001/02/00-5057.htm

      In re Olshan, No. 02-56792 (9th Cir. 01/28/2004) (A bankruptcy court adjudicating a tax claim by the IRS must apply the burden-of-proof rubric normally applied under tax law. See Raleigh v. Ill. Dep’t of Revenue, 530 U.S. 15, 20-21 (2000). "In an action to collect taxes, the government bears the initial burden of proof." Palmer v. United States, 116 F.3d 1309, 1312 (9th Cir. 1997) (citing United States v. Stonehill, 702 F.2d 1288, 1293 (9th Cir. 1983)). That burden is satisfied by the IRS’s "deficiency determinations and assessments for unpaid taxes," which are presumed correct "so long as they are supported by a minimal factual foundation." Id. However, "[a] showing by the taxpayer that a determination is arbitrary, excessive or without foundation shifts the burden of proof back to the IRS." Id. (citing Helvering v. Taylor, 293 U.S. 507, 515-16 (1935)). Thus, once the debtor rebuts the presumption, the burden reverts to the IRS to show that its determination was correct. See Keogh v. Comm’r, 713 F.2d 496, 501 (9th Cir. 1983). http://caselaw.lp.findlaw.com/data2/circs/9th/0256792p.pdf

      Presumption of innocence.

      A hallowed principal of criminal law to the effect that the government has the burden of proving every element of crime beyond a reasonable doubt and that the defendant has no burden to prove his innocence. Presumption of innocence strictly conveys the principal that no person may be convicted of a crime unless the Government carries the burden of proving his guilt beyond a reasonable doubt but it does not mean that no significance at all may be attached to the indictment {U.S. v. Friday}.

      ORS 40.120 Rule 308 (Presumptions in civil proceedings). In civil actions and proceedings, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. [1981 c.892 s.17]

      ORS 40.125 Rule 309 (Presumptions in criminal proceedings). (1) The judge is not authorized to direct the jury to find a presumed fact against the accused. (2) When the presumed fact establishes guilt or is an element of the offense or negates a defense, the judge may submit the question of guilt or the existence of the presumed fact to the jury only if: (a) A reasonable juror on the evidence as a whole could find that the facts giving rise to the presumed fact have been established beyond a reasonable doubt; and (b) The presumed fact follows more likely than not from the facts giving rise to the presumed fact. [1981 c.892 s.18]

      Presumption of jurisdiction.

      State v. Officer, 4 Or. 180 (1871) (The power of the Municipal or District Court is that of the old "justice of the peace" courts which were courts of "limited and special jurisdiction.) (Inferior tribunals are subject to the supervisory control (judicial powers), and must show affirmative proof on the face on the inferior tribunal record to sustain a conviction. "If the court is . . . of some special statutory jurisdiction it is as to such proceedings an inferior court, and not aided by presumption of jurisdiction.) Cf. Norman v. Zeiber, 3 Or 198);

      Evans v. Marvin, 76 Or. 540, 148 P 119 (1915) (" . . . the constitutional rule that justices courts are of limited jurisdiction. ...their judgments must be sustained affirmatively by positive proof that they had jurisdiction of the cases they attempt to decide.");

      Cf. ORS 398.414 [1961 c.454 s.206] (Presumption of jurisdiction) (The jurisdiction of the military courts and boards established by this chapter shall be presumed and the burden of proof rests on any person seeking to oust those courts or boards of jurisdiction in any action or proceeding.);

      Presumptive trust.
      Trust raised by implication of law and presumed always to have been contemplated by parties, intention as to which is to be found in nature of transaction but not expressed in deed or instrument of conveyance, and is thus distinguished from "constructive trust." {Kollbaum v. K & K Chevrolet Inc., 196 Neb. 555, 244 N.W.2d 173, 174}. Cf. Binding agreement; Constructive trust; Ministerial trusts; Resulting trust; Tacit;

      Naito Corp. v. Quest Entertainment Ventures,

      No. 00-506-AS (USDC Or. 04/16/2001) (Although the Court in Onita determined that the "scope of the duty" and the "scope of the recovery" should be determined on a case-by-case basis, it delineated some instances in which the law imposes or may impose a tort duty of care on a party to protect the other parties to the relationship. The Court expressly recognized the following professional or contractual relationships that give rise to a tort duty of care to further the economic interests of the client: 1) attorney-client, including intended beneficiaries of the duty to the client; 2) engineer-client, including intended beneficiaries; 3) architect-client, including intended beneficiaries; 4) agent-principal; 5) real estate agent-principal; and 6) primary insurer-excess insurer, and to the insured, to exercise care in attempting to settle third-party claims within policy limits. Id. at 160-161 (see cases cited therein). In addition the Oregon Supreme Court also stated that "nongratuitous suppliers of information owe a duty to their clients or employers or to intended third-party beneficiaries of their contractual, professional, or employment relationship to exercise reasonable care to avoid misrepresenting facts." Id. at 165.); http://www.law.uoregon.edu/resources/7_13_01/hnc_qev_p_apr16.pdf

      Lozano v. Summit Prairie Cattlemens Assoc., 91-2707-L-1; CA A94281 (Or. 07/15/1998) (An express trust is one in which the circumstances show that the grantor of the property intended to create a trust. A resulting trust is one in which the circumstances show that, while the grantor may not have expressly intended to create a trust, the grantor also had no intention to give the beneficial interest in the property to the grantee. Belton v. Buesing, 240 Or 399, 405-06, 402 P2d 98 (1965). A constructive trust can arise when the transaction does not create an enforceable express or resulting trust. It is a remedial measure that equity invented in order to avoid unjust enrichment in situations where there is no other available equitable remedy. Id. at 409. An essential aspect of an express or a resulting trust is that the putative trustee has received property under conditions that impose a fiduciary duty to the grantor or a third person. A mere contractual obligation, including a contractual promise to convey property, does not create a trust. See Restatement (Second) of Trusts § 13. The imposition of a constructive trust requires a confidential or fiduciary relationship between the putative trustee and the putative beneficiary. See Hollen v. Fitzwater, 125 Or App 288, 292, 865 P2d 1298 (1993), rev den 319 Or 80 (1994). Proof of the elements of a constructive trust must be "by strong, clear and convincing evidence." Albino v. Albino, 279 Or 537, 550, 568 P2d 1344 (1977). In this case these essential elements are missing.); http://www.publications.ojd.state.or.us/A94281.htm 

      Presumption of truth.

      ORS 44.370 (Witness presumed to speak truth; jury judges of credibility) (A witness is presumed to speak the truth. This presumption, however, may be overcome by the manner in which the witness testifies, by the character of the testimony of the witness, or by evidence affecting the character or motives of the witness, or by contradictory evidence. Where the trial is by the jury, they are the exclusive judges of the credibility of the witness.)

      Rebuttable presumption. In the law of evidence, a presumption which may be rebutted by evidence. Otherwise called a "disputable" presumption. A species of legal presumption which holds good until evidence contrary to it is introduced {Beck v. Kansas City Public Service Co.}. It shifts the burden of proof {Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 362, 76 L.Ed 772 (1932); and which standing alone will support a finding against contradictory evidence {Lieber v. Rigby}. Cf. Schikore v. BankAmerica Supplemental Retirement Plan, Nos. 99-16952 99-17017 (9th Cir. 10/16/2001);

      Heiner v. Donnan, 285 U.S. 312 (1932) (...it is hard to see how a statutory rebuttable presumption is turned from a rule of evidence or of substantive law as the result of the later statute making it conclusive. In both cases it is a substitute for proof; in the one, open to challenge and disproof, and in the other conclusive. However, whether the latter presumption be treated as a rule of evidence or of substantive law, it constitutes an attempt, by legislative fiat, to enact into existence a fact which here does not, and cannot be made, to exist in actuality, and the result is the same..." This court has held more than once that a statute creating a presumption which operates to deny a fair opportunity to rebut violates the due process clause of the Fourteenth Amendment. For example, a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by a direct enactment.); http://laws.findlaw.com/us/285/312.html

      Lex contra id quod præsumit, probationem non recipit {The law admits no proof against that which it presumes}; A presumption will stand good until the contrary is proved {Stabit præsumptio donec probetur in contrarium}; Federal Evidence Rule 103; ORS 40.135 Rule 311;

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