Instructing the Jury upon Presumptions and Burden of Proof

Morgan, Edmund M.

doi:10.2307/1332106

Cited by 8 publications

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“…2 and 3]; Thayer [1898: ch. 8]; Morgan [1931, 1933]). What prosecutors have to show is that the presumption of innocence is defeated by the available evidence.…”

Section: The Moorean Argument Against the Moral Error Theorymentioning

confidence: 99%

Using and Abusing Moorean Arguments

Scarfone¹

2021

J. of the Am. Philos. Assoc.

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Metaethical Mooreanism is the view that without being able to explain how we know certain moral claims we can nevertheless be sure that we do know them. In this article I focus on the Moorean argument against moral error theory. I conclude that it fails. To show this failure, I first distinguish Moorean claims from Moorean arguments, and then so-called presumptive support from dialogical support. With these distinctions in place, I argue that the key Moorean claim requires dialogical support in order to be used within the Moorean argument against moral error theory, but metaethical Mooreans have provided only presumptive support for the Moorean claim. Not only is this presumptive support inadequate for fending off the moral error theory, it is doubtful that Mooreans can actually provide dialogical support for the key Moorean claim.

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“…2 and 3]; Thayer [1898: ch. 8]; Morgan [1931, 1933]). What prosecutors have to show is that the presumption of innocence is defeated by the available evidence.…”

Section: The Moorean Argument Against the Moral Error Theorymentioning

confidence: 99%

Using and Abusing Moorean Arguments

Scarfone¹

2021

J. of the Am. Philos. Assoc.

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“…Best (2009, 229–30) noted how the interpretation of the effects of presumption differ from state to state. The literature on the rebuttal of presumptions in civil law (see for instance Hecht and Pinzler 1978; Park, Leonard and Goldberg 1998, 102–5) distinguished between different theories of interpretation of this rule, namely the bursting bubble (see McCormick 1972, 871), the burden of persuasion shifting, and an intermediate theory (see Morgan 1933). In the first case, the presumption simply disappears when evidence of any kind is brought in; in the second case, presumptions alter the burden of persuasion and need to be rebutted by a standard of proof; in the third case, evidence needs to be real evidence, namely it should be considered by the jury or the judge as sufficient (see Mueller and Kirkpatrick 1999, 182–90).…”

Section: Epistemic Grounds and Dialectical Effects: Rebutting A Prmentioning

confidence: 99%

Presumptions in Legal Argumentation

Macagno

Walton

2012

Ratio Juris

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In this paper a theoretical definition that helps to explain how the logical structure of legal presumptions is constructed by applying the Carneades model of argumentation developed in artificial intelligence. Using this model, it is shown how presumptions work as devices used in evidentiary reasoning in law in the event of a lack of evidence to assist a chain of reasoning to move forward to prove or disprove a claim. It is shown how presumptions work as practical devices that may be useful in cases in which there is insufficient evidence to prove the claim to an appropriate standard of proof.

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“…Legal scholars of that era spent endless hours and spilled untold amounts of ink attempting to isolate precisely what constitutes a presumption.13 Is a presumption like a bat fleeing the sun,14 or a bubble that bursts upon the happening of some poorly defined event,15 or does a presumption have a "stronger" effect than those colorful metaphors implied? 16 Scholars also speculated that instructions on presumptions might be similar to instructions on inferences,17 differing perchance in some ill-perceived and mysterious way. 18 Given these andother'19 ambiguities, it is not surprising that the Code drafters largely ignored the proof rules and chose only to provide definitions of the word "presumption"20 and the phrase "burden of establishing.…”

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confidence: 99%