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Review Questions


  1. What is the difference between a presumption and an inference? Between a presumption and a stipulation? (SS6.2)
  2. How does the use of a presumption affect the burden of going forward with the evidence? (SS6.2)
  3. Explain how proof of a basic fact involved in a presumption gives rise to the belief that a second fact, the presumed fact, actually exists or is true. (SS6.2)
  4. What real and potential benefits accrue to the court and to the contending parties by virtue of using presumptions and inferences in criminal trials? (SS6.3)
  5. Define a presumption of law and give at least two examples of such a presumption. (SS6.4)
  6. What is the difference between a presumption of law and a presumption of fact? (SSSS6.4, 6.5)
  7.  There are four classes of presumptions discussed in your text. Name, define, and give one example of each. (SS6.6)
  8. In a criminal case, the defendant is rebuttably presumed to be innocent. Is it necessary for the judge to give an instruction on the presumption of innocence? Elaborate. Does the presumption of innocence prevail on appeal, after conviction? (SS6.8)
  9. . Because every defendant is presumed innocent until proven guilty, does a trial judge have to give a jury instruction explaining this presumption? Explain. (SS6.8)
  10. There is a rule of evidence that states that every person is presumed to be sane. What is the legal effect of this presumption? Is this presumption rebuttable or conclusive? Explain. (SS6.9)
  11. According to the provisions of the 1984 Comprehensive Crime Control Act, mental disease or defect does not constitute a defense in federal court unless, at the time of commission of the act, and as a result of severe mental disease or defect, the defendant was unable to appreciate the nature and quality of the wrongfulness of the acts. Under this provision, who has the burden of proving the defense of insanity? What degree of proof is required? (SS6.9)
  12. If a state places the burden of proving insanity on a defendant, because the state may presume all persons are sane, why does this not result in a defendant having to unconstitutionally disprove an element of the crime charged? (SS6.9)
  13.  What is the rationale for the presumption against suicide? (SS6.10)
  14. Some states still apply the rule that proof of the accused's knowing possession of recently stolen goods gives rise to the presumed fact that the defendant was the thief. Discuss the conditions that must be met if this presumption is applied. (SS6.11)
  15. Some courts have given the instruction that the person accused of crime is presumed to have intended the ordinary consequences of his or her voluntary acts. What has been the opinion of the Supreme Court of the United States concerning this type of instruction? (SS6.12)
  16. The presumption of law that a person is presumed to know the general public laws of his or her state of residence and of the United States has been stated by many courts as indicative of public policy. What is the effect of this presumption? (SS6.13)
  17. 17. When should a judge offer a jury instruction covering a defendant's unexplained flight from a crime scene? Does proof of flight give rise to a presumption of consciousness of guilt? (SS6.14)
  18. Under what circumstances does it constitute an appropriate occasion for a judge to offer a jury instruction concerning the absence of a person from the usual environs as giving rise to a presumption or inference that the absent person is deceased? (SS6.15)
  19. Under what section of the United States Constitution is the presumption usually challenged? What is the opinion of the Supreme Court concerning statutory presumptions? (SS6.17)
  20. The parties involved in a criminal case may stipulate the existence or nonexistence of a fact. Does this exclude evidence regarding the truth or falsity of the matter stipulated? Give an example of a stipulation. (SS6.18)
  21. In Kentucky v. Whorton, the trial court, after a request by defense counsel, refused to instruct the jury on the presumption of innocence. What was the opinion of the Kentucky Supreme Court and later the United States Supreme Court regarding the trial court's failure to give a specific instruction on the presumption of innocence? (Kentucky v. Whorton) (SS6.8)
  22. In the case of State v. Jackson, the defendant was convicted of attempted burglary and appealed to the Supreme Court of Washington. One of the issues presented on appeal was whether, in an attempted burglary case, it is error to instruct the jury that it may infer that the defendant acted with intent to commit a crime within a building from the fact that the defendant may have attempted to enter the building. What was the decision of the court relating to this issue? What was the rationale of the court in regard to the constitutionality of criminal statutory presumptions? (State v. Jackson, Part II)
  23. In Illinois v. Purcell, the defendant complained that the presumption of innocence was not being fully recognized since his pretrial bail. According to the state statute, bail may not be obtained where "the proof is evident or the presumption great" that the defendant committed a capital offense or an offense for which he may be sentenced to life imprisonment. May a state have a presumption of innocence for trial purposes and at the same time maintain that a defendant must prove innocence or at least prove that the evidence of his guilt was not strong in order to obtain pretrial release on bail? (Illinois v. Purcell, Part II)