Assumptions and Presumptions

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Category: Civil Procedure, Evidence, Legal Practice, Public
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As most students at Eckstein are frantically and diligently studying to ensure we put forth our best efforts during this finals period, I can’t help but think about the certain “presumptions” built into our institution of law. Numerous assumptions and presumptions are used in many different areas of law, but they seem to be accentuated when looking at the Federal Rules of Evidence.

Let’s look at Federal Rule 801 2(b), for instance. Is it really true that a failure to respond makes for an adopted admission? Those who have had, or have, a significant other: have you ever been silent to an assertion made by your significant other? I’m assuming that, like me, you remained silent not because you wanted to tacitly give your approval of the assertion, but rather because you wanted to save the feelings of your significant other, or eliminate a needless argument. I am aware that most things that end up in court may not be so trivial, but nevertheless this example popped into my head rather quickly without much thought. I am sure that the same could be said for many others, and it is the basis of the presumption in general I find unreliable.

Let’s turn to another presumption by looking at Federal Rule 804(b)(2), the “Dying Declaration.”  

We presume its trustworthiness and sincerity because no one wants to meet their Maker lying, but what if you’re an atheist? Doesn’t the “dying declaration” presumption in itself presume that the declarant believes in an afterlife and expects judgment to be cast on their behavior? Or is the presumption simply based upon “well, the person has no incentive to lie or keep lying so they must be telling the truth” (sarcasm added).

These are simply a couple of innocent examples, but our institutions seem to be filled with them at every turn. I can’t help but think that these assumptions are the “rules” through which we are learning to navigate.

I am under the impression that presumptions about human nature are primarily based upon the culture in which you live. Furthermore, any presumption about human nature that finds its way into a legal code/institution, is more likely implanted by the dominant represented culture of that society. What troubles me is the possibility that these “rules” apply unfavorably to groups of people disproportionately, i.e. poor people, ethnic groups, non-mainstream religions, etc. The legal profession has added more diversity to its ranks practicing law, but the “rules” themselves still disadvantage some much more than others.

I guess the silver lining to my dreary cloud is the fact that these are called “presumptions,” and for the most part, presumptions were made to be challenged. I pray I learn to be an effective advocate, who can qualitatively, and deferentially, rebut those presumptions when needed to serve my clients’ interests.

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2 Responses to “Assumptions and Presumptions”

  1. Greg Helding Says:

    “I pray I learn to be an effective advocate. . .”

    You are well on your way, my friend. Good luck applying those evidence rules on Wednesday!

  2. I await the next article with great anticipation.

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