Rule 311. Presumptions
Source:
Section 40.135 — Rule 311. Presumptions, https://www.oregonlegislature.gov/bills_laws/ors/ors040.html.
See also annotations under ORS 41.360 in permanent edition.
Notes of Decisions
Under former similar statute (ORS 41.360)
In general
In civil case when basic facts giving rise to disputable presumption are established, presumption binds trier of fact if there is no opposing evidence, but if there is, trier must weigh evidence, giving presumption value of evidence, and determine upon which side evidence preponderates. Wright v. SAIF, 289 Or 323, 613 P2d 755 (1980)
Consequences intended
Presumption that consequences of act were intended is inappropriate where intent is element of criminal act. State v. Bartolon, 8 Or App 538, 495 P2d 772 (1972)
When criminal prosecution is initiated, state is entitled to rely on presumptions that defendant is sane and intended ordinary consequences of acts. State v. Keys, 25 Or App 15, 548 P2d 205 (1976)
Ownership of property
Criminal defendant may rely on ownership presumption to establish expectation of privacy necessary to challenge search. State v. Statham, 55 Or App 646, 639 P2d 684 (1982)
Performance of official duty
Statutory presumption that tax assessor has faithfully performed assessor’s procedural duty does not extend to valuation assessor places on property. J.R. Widmer, Inc. v. Dept. of Rev., 261 Or 371, 494 P2d 854 (1972)
Condition precedent to presumption that official duty has been regularly performed is that circumstances of particular case add some element of probability. Nyman v. City of Eugene, 286 Or 47, 593 P2d 515 (1979)
Identity of name
Court may declare nonidentity as matter of law only if proof of nonidentity is so conclusive that reasonable minds could not dispute matter. Lynd v. Rockwell Mfg., 276 Or 341, 554 P2d 1000 (1976)
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. Garrett, 281 Or 281, 574 P2d 639 (1978)
Contract of marriage
Burden is on party challenging the marriage to disprove, by most cogent and satisfactory evidence, validity of marriage. Franklin v. Biggs, 14 Or App 450, 513 P2d 1216 (1973), Sup Ct review denied
Presumption will not be overcome by failure to produce valid marriage certificate. Franklin v. Biggs, 14 Or App 450, 513 P2d 1216 (1973), Sup Ct review denied
Continuing existence
Presumption that “thing once proved to exist continues as long as is usual with things of that nature” applies only to factual condition established in prior adjudication, and defendant, who had been previously committed as “mentally ill,” was not entitled to instruction on presumption phrased in terms of insanity. State v. Weller, 285 Or 457, 591 P2d 732 (1979)
Where event is of easily terminable nature, presumption cannot support finding beyond reasonable doubt that event has continued. State v. Harris, 288 Or 703, 609 P2d 798 (1980)
Under Evidence Code
Presumption that person not heard from in seven years is dead does not prohibit presuming death of person missing for shorter period of time. State v. Lerch, 63 Or App 707, 666 P2d 840 (1983), aff’d 296 Or 377, 677 P2d 678 (1984)
Where mother and husband were not married at time child was born, born-in-wedlock presumptions cannot apply. Dept. of Human Resources v. Mock, 83 Or App 1, 730 P2d 553 (1986), Sup Ct review denied
Presumption that writing is truly dated does not raise presumption that writing was mailed on same day as written. SAIF v. Tull, 113 Or App 449, 832 P2d 1271 (1992)
COMPLETED CITATIONS (for ORS 41.360 in permanent edition): Williamson v. State Acc. Ins. Fund, 6 Or App 95, 487 P2d 110 (1971)
Attorney General Opinions
Under former similar statute (ORS 41.360)
Statutory presumption that permit is issued in accordance with prescribed standards as rebuttable, (1971) Vol 35, p 844
Law Review Citations
Under Evidence Code
19 WLR 374 (1983); 62 OLR 493 (1983)
Up to date