Presumptions in a One-Rule World

In the 54 years since Thayer wrote the first excerpt, an enormous amount of excellent scholarship has been devoted to presumptions. Yet confusion persists. It may not be presumptuous, therefore, to suggest some causes of confusion more radical than those mentioned by Professor Morgan in the second excerpt quoted above. This is not to say that he has not stated them.

In fact he has painstakingly pointed out the fundamental difficulties in a number of articles written both before and after he became draftsman of the Model Code. As draftsman he has had to carry a burden of expounding it and perhaps has been led to emphasize the sections on presumptions because, although he drafted them, they are not those that he recommended and desired. He sketches the difficulties again in the context from which the sentence is quoted. Many other scholars have contributed to a general cooperative effort to solve the presumption problem.

All in all, the subject has been completely developed and thoroughly discussed. This article can do no more than to make a shift in emphasis in using what others have said very well. It is hoped that this emphasis will help to orient the problems and to appraise the solution proposed in the Model Code of Evidence. The Code proposes to make true, with one perhaps telltale exception, the now false assumption "that all presumptions are to be given the same procedural effect."