Rebuttable Presumption

Question: what is an example of a rebuttable presumption?

Answer: A rebuttable presumption is a conclusion as to the existence or nonexistence of a fact that a judge or jury must draw when certain evidence has been introduced and admitted as true in a lawsuit but that can be contradicted by evidence to the contrary. A rebuttable presumption can be overturned only if the evidence contradicting it is true and if a reasonable person of average intelligence could logically conclude from the evidence that the presumption is no longer valid. For example, a person who has been judicially declared incompetent is presumed incompetent unless there is sufficient proof, usually in the form of medical testimony, that the person has regained competency. In criminal law, there is a presumption of innocence in favor of the accused. The prosecution must establish beyond a reasonable doubt that the accused committed the crime charged. Both in common law and in civil law, a rebuttable presumption (in Latin, praesumptio iuris tantum) is an assumption that is made that is taken to be true unless someone comes forward to contest it and prove otherwise. Rebuttable presumptions in criminal law are somewhat controversial in that they do effectively reverse the presumption of innocence in some cases. Now let me explain it from a layperson's perspective: Usually, every element of a case must be proven to a judge or a jury. The exception is a "presumption", which means that if certain other facts are proven, then another fact can be taken for granted by the judge (or jury). For example, in some states, an adult caught having intercourse with a minor is presumed as having known that the minor was under-age. Most presumptions are "rebuttable", which means that the person against whom the presumption applies may present evidence to the contrary, which then has the effect of nullifying the presumption. This then deprives the person that tried to use the presumption with the advantage of the "free" evidence and makes him present evidence to support the fact which might have been proven by the presumption. Hope that made sense.

Question: There is a presumption in law that no woman would falsely accuse a man of rape, is this justified ? What is the legal basis for this presumption ? Is this presumption rebuttable ? Can judges draw general conclusions about human conduct and use it as the basis during trial ? Can a trial be conducted based on such generalizations or assumptions ?

Answer: This presumption is just because of the social status of Indian women in general, that if they accuse any men of the offence of rape it must be so as it is presumed no Indian woman will openly expose her sexuality. You live in big city & people you meet are educated & socially well to do. For you such accusation seems indigestible as you have seen the social status of women in cities, but if you go to remote areas, villages in India you will still find the pathetic condition of Indian women. Poverty, uneducation, social backwardness, religious ethos all had prevented these women to develop as their counter parts in cities that you see & meet. This presumption which you talk about is kept keeping in mind those women. No doubt this presumption is not a matter of right but only matter of convenience, in each case the facts & circumstances have to be weighed to come to conclusion regarding the offence of rape. Just recently the Supreme Court in its landmark judgment convicted the accused of the offence of rape merely on the statement of the victim woman although the medical report (which is the most important piece of evidence in such cases) did not prove the charges against the accussed.In this case the victim was a poor, uneducated, socially backward woman who was raped. The Supreme Court of India was convinced that in such a case the mere statement of the victim was sufficient as such a statement was not corrupted with any other ulterior motives. So this presumption regarding the accusation of one being raped has to be based on all the facts & circumstance (including the social status of the victim) of the whole case as it was in this particular case. Definitely the presumption is rebuttable as such presumption may not even taken in account if a ultra modern woman, well educated & belonging to high social status accuse any man who himself be having high social status, in such case the strict proof based on irrefutable piece of evidence will be required on the records to convict the accused of the offence of rape. This fact always weigh in the mind of any judge who is hearing a complaint of rape the social status of the victim or complainant & they can assume that a well to do woman, with advance outlook may be using such accusation as a tool to victimize a man for some ulterior motives other then the act of rape & hence the complete evidence brought on the record of this charge has be strictly assessed. But in case of a socially backward woman the assumption of her being actually being raped will weigh high in his mind.

Question: Could any of you please cite the provision in the AZ proposed bill that says “arrest people that look Latino”? ARIZONA STATE SENATE Forty-ninth Legislature, Second Regular Session FACT SHEET FOR S.B. 1070 immigration; law enforcement; safe neighborhoods Purpose Requires officials and agencies of the state and political subdivisions to fully comply with and assist in the enforcement of federal immigration laws and gives county attorneys subpoena power in certain investigations of employers. Establishes crimes involving trespassing by illegal aliens, stopping to hire or soliciting work under specified circumstances, and transporting, harboring or concealing unlawful aliens, and their respective penalties. Background Federal law provides that any alien who 1) enters or attempts to enter the U.S. at any time or place other than as designated by immigration officers, 2) eludes examination by immigration officers, or 3) attempts to enter or obtains entry to the U.S. by a willfully false or misleading representation is guilty of improper entry by an alien. For the first commission of the offense, the person is fined, imprisoned up to six months, or both, and for a subsequent offense, is fined, imprisoned up to 2 years, or both (8 U.S.C. § 1325). The U.S. Immigration and Customs Enforcement (ICE) is the primary authority for enforcing immigration laws. ICE was created in March 2003 as an investigative branch of the Department of Homeland Security. ICE was the result of combining the Immigration and Naturalization Service and the U.S. Customs Service. Current statute defines criminal trespass in the first degree as a person knowingly entering or remaining unlawfully in areas related to residential structures, residential yards, real property subject to a valid mineral claim or lease under certain circumstances, property if the person defaces religious symbols or religious property, or critical public service facilities. Depending on the circumstances, criminal trespass in the first degree provides penalties ranging from a class 1 misdemeanor to a class 6 felony (A.R.S. § 13-1504). In 2007, Arizona enacted the Legal Arizona Workers Act (LAWA), prohibiting an employer from knowingly or intentionally employing an unauthorized alien and establishing penalties for employers in violation. The U.S. Citizenship and Immigration Services office administers the Systematic Alien Verification for Entitlements (SAVE) Program. The SAVE Program, together with the Social Security Administration (SSA), administers E-Verify, which allows employers to electronically confirm the employment eligibility of all newly hired employees. LAWA requires all Arizona employers to use E-Verify to verify the employment eligibility of new hires. Proof of verifying the employment authorization of an employee through E-Verify creates a rebuttable presumption that an employer did not intentionally or knowingly employ an unauthorized alien. The fiscal impact is unknown; however, there may be additional costs associated with criminal prosecution and detention of persons who are accused and convicted of the crimes established in this legislation. Additionally, the addition of new fines associated with this measure may also have an impact. fellow link to Provisions to the bill http://www.azleg.gov/legtext/49leg/2r/su…

Answer: There isn't any!! It's hysteria and pure ignorance. No one has read this bill but everyone is offering their opinion based on emotion not FACT.

Question: what does this mean in terms of child support/ unemployment? (2006) There shall be a rebuttable presumption that a parent who receives unemployment compensation has been terminated involuntarily and without cause. Their unemployment compensation shall be included as other taxable income. i took that off of this site: http://courts.delaware.gov/how%20to/Supp… my ex is about to get layed off. i'm trying to find out if that means he doesn't have to pay child support.

Answer: This means that he will receive unemployment compensation if he is terminated and not fired. As for Child support - he may not make enough money on unemployment to cover child support. Which would totally suck. The cool thing is that he will get in big trouble if he doesn't pay and eventually he might end up in jail. Hopefully he will pay you something. I will keep my fingers crossed that he will continue to pay you.

Question: What does it take to be arrested for DUI/DWI? Does a police officer have to give you a field sobriety test and/or a blood alcohol test before he/she can arrest you for a DUI/DWI? "The traditional "drunk driving" offense, consists of driving under the influence of alcohol and/or drugs. Evidence to support this crime generally comes from the officer's observations (erratic driving, slurred speech, unsteady gait, etc.), performance on field sobriety tests, and a legal (and generally rebuttable) presumption of intoxication from a blood alcohol test result over the legal limit." Does a police officer have to "observe" all of these to deem you "under the influence"? Or is one or two of these "observations" enough for an arrest? Example: You are pulled over because of your "erratic driving". You roll down your car window and the officer smells alcohol (and you are alone in the vehicle). Is that enough "observation" for an arrest? Or must a sobriety test/BAC test be given? And what if a person refuses the test? Thanks... (lol-lol) Sgt 524... thanks for the reminder that I've been lazy and haven't changed my avatar. But I don't want to break any laws, so I'll change it immediatly. :) Thanks!

Answer: no the officer does not have to give you a FST (field sobriety test) in order to arrest you for DUI/DWI...if the officer noticed your driving was not normal that's enough to pull you over. and when he did stop you smelled alcohol on your person, that could be enough to substantiate the arrest for DUI....keep in mind FST's are not required to be given by law enforcement. They are merely used to backup the officer's reasons for the arrest. And of course you already know the the breathalyzer as well as blood/urine collection is also used to substantiate the officers arrest.

Question: fighting to end spousal support in Ventura Co. California? Anybody got any tips or advice? I am going to fight it on the grounds of rebuttable presumption of cohabitation. (She left me and has moved in with my ex-friend) and I do have proof they are romantically involved. They've been living with each other for some time. Suggestions, Ideas, tips? We have a child and 50/50 custody. I can't survive on what I have after DCSS, etc. get done with me, so I have to fight this.

Answer: A VERY sticky situation. It is to your BEST interest to seek professional legal advice. CA law is set up for the best interest of the female, but there are loop holes. You NEED to seek out a lawyer. Good Luck

Question: Has anybody fought spousal support in CA? Especially using the "rebuttable presumption of cohabitation?" What worked and did not work for you? I am in Ventura county. Any help would be most appreciated. Fyi- she works, has worked the entire marriage, left to be with another man, lives with him now, we have 50/50 custody. (and I have looked online for info.)

Answer: If she's worked during the entire marriage, then you shouldn't have to pay spousal support. Child support, yes. Hope you have a good lawyer. CA rules are messed up. My fiance had 50/50 custody, but had no visitation. Explain that one!

Question: Why are Dems so afraid of inanimate objects and want to ban them? Rifles (or copies or duplicates): M1 Carbine, Sturm Ruger Mini-14, AR-15, Bushmaster XM15, Armalite M15, AR-10, Thompson 1927, Thompson M1; AK, AKM, AKS, AK-47, AK-74, ARM, MAK90, NHM 90, NHM 91, SA 85, SA 93, VEPR; Olympic Arms PCR; AR70, Calico Liberty , Dragunov SVD Sniper Rifle or Dragunov SVU, Fabrique National FN/FAL, FN/LAR, or FNC, Hi-Point20Carbine, HK-91, HK-93, HK-94, HK-PSG-1, Thompson 1927 Commando, Kel-Tec Sub Rifle; Saiga, SAR-8, SAR-4800, SKS with detachable magazine, SLG 95, SLR 95 or 96, Steyr AU, Tavor, Uzi, Galil and Uzi Sporter, Galil Sporter, or Galil Sniper Rifle ( Galatz ). Pistols (or copies or duplicates): Calico M-110, MAC-10, MAC-11, or MPA3, Olympic Arms OA, TEC-9, TEC-DC9, TEC-22 Scorpion, or AB-10, Uzi. Shotguns (or copies or duplicates): Armscor 30 BG, SPAS 12 or LAW 12, Striker 12, Streetsweeper. Catch-all category (for anything missed or new designs): A semiautomatic rifle that accepts a detachable magazine and has: (i) a folding or telescoping stock, (ii) a threaded barrel, (iii) a pistol grip (which includes ANYTHING that can serve as a grip, see below), (iv) a forward grip; or a barrel shroud. Any semiautomatic rifle with a fixed magazine that can accept more than 10 rounds (except tubular magazine .22 rim fire rifles). A semiautomatic pistol that has the ability to accept a detachable magazine, and has: (i) a second pistol grip, (ii) a threaded barrel, (iii) a barrel shroud or (iv) can accept a detachable magazine outside of the pistol grip, and (v) a semiautomatic pistol with a fixed magazine that can accept more than 10 rounds. A semiautomatic shotgun with: (i) a folding or telescoping stock, (ii) a pistol grip (see definition below), (iii) the ability to accept a detachable magazine or a fixed magazine capacity of more than 5 rounds, and (iv) a shotgun with a revolving cylinder. Frames or receivers for the above are included, along with conversion kits. Attorney General gets carte blanche to ban guns at will: Under the proposal, the U.S. Attorney General can add any "semiautomatic rifle or shotgun originally designed for military or law enforcement use, or a firearm based on the design of such a firearm, that is not particularly suitable for sporting purposes, as determined by the Attorney General." Note that Obama's pick for this office (Eric Holder, confirmation hearing set for Jan. 15) wrote a brief in the Heller case supporting the position that you have no right to have a working firearm in your own home. In making this determination, the bill says, "there shall be a rebuttable presumption that a firearm procured for use by the United States military or any federal law enforcement agency is not particularly suitable for sporting purposes, and a firearm shall not be determined to be particularly suitable for sporting purposes solely because the firearm is suitable for use in a sporting event." In plain English this means that ANY firearm ever obtained by federal officers or the military is not suitable for the public. The last part is particularly clever, stating that a firearm doesn't have a sporting purpose just because it can be used for sporting purpose -- is that devious or what? And of course, "sporting purpose" is a rights infringement with no constitutional or historical support whatsoever, invented by domestic enemies of the right to keep and bear arms to further their cause of disarming the innocent. Respectfully submitted, Alan Korwin, Author Gun Laws of America http://www.gunlaws.com/gloa.htm

Answer: It's not about fear of objects. It's about desire to control.

Question: Does a Judge have to uphold a Senate Bill? Speaking of family court Judges in Texas. Regarding SB 140. By: Moncrief, BernsenS.B. No. 140 (In the Senate - Filed December 4, 2000; January 11, 2001, read first time and referred to Committee on Jurisprudence; January 31, 2001, reported favorably by the following vote: Yeas 6, Nays 0; January 31, 2001, sent to printer.) A BILL TO BE ENTITLED AN ACT relating to the appointment of a person who has a history of abuse or neglect as a sole managing conservator. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Subsection (b), Section 153.004, Family Code, is amended to read as follows: (b) The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child. It is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child. SECTION 2. (a) This Act takes effect September 1, 2001, and applies only to an order in a suit affecting the parent-child relationship rendered on or after that date, without regard to whether the suit was filed before, on, or after that date. (b) The enactment of this Act does not by itself constitute a material and substantial change of circumstances sufficient to warrant modification of a court order or portion of a decree that provides for the possession of or access to a child rendered before the effective date of this Act. * * * * * Stage 1Bill filed by Moncrief on 12/4/2000. Stage 2Bill reported out of Senate committee on Jurisprudence with vote of 6 Ayes, 0 Nays, 0 Present Not Voting, 3 Absent. Stage 3Bill passed the Senate. Stage 4Bill reported out of House committee on Juvenile Justice & Family Issues with vote of 0 Ayes, 0 Nays, 0 Present Not Voting, 0 Absent. Stage 5Bill passed the House. Stage 6Bill sent to the governor. Stage 7Bill becomes law. Effective on 9/1/01 Sec. 153.004. HISTORY OF DOMESTIC VIOLENCE. (a) In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force by a party against the party's spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit. (b) The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child, including a sexual assault in violation of Section 22.011 or 22.021, Penal Code, that results in the other parent becoming pregnant with the child. A history of sexual abuse includes a sexual assault that results in the other parent becoming pregnant with the child, regardless of the prior relationship of the parents. I To restate the question, Would the Family court Judge have to uphold Sec. 153.004 of the Texas Family code?

Answer: A judge does NOT have to uphold a senate bill. BUT, a judge will uphold any bill (law) that is not in conflict with the constitution.

Question: If a parent has hidden cameras? In their adult child room and the child doesnt know about it, but eventually he has some reason to believe he is on camera, if he says he doesnt want to be on camera, and the parent says there are no cameras (which there are) is this legal?Also, I have been told many things by many different attourneys about filming expectation of privacy. Some say if you close a door, and call a space yours, you have a reasonable expectation of privacy and reason to believe no one would film you there. Others say their house, their rules. (But still if you record an adult in places where he has an expectation of privacy without his knowledge, thats not really a rule imo) Others say "their house their rules falls flat on its face in court.If parents give police consent to search the house for something, they may not give consent to search your room, as it is you abode." But just recently I read "The court noted that some cases “have followed the view that, when two autonomous adults jointly occupy a dwelling and have separate bedrooms, each occupant generally has a higher expectation of privacy in his or her own bedroom,” and consent by the other occupant is insufficient to support a search of the bedroom. In effect, these cases have created a rebuttable presumption that joint occupants of a residence lack authority to consent to a search of one another’s bedrooms. The Hubert court, however, rejected this view. Noting that the issue of authority to consent to search is “always a fact-specific inquiry,” the court seemed effectively to adopt the reverse presumption: at least where the joint occupants are closely related, the court was inclined to “presume that [each] relative has sufficient common authority over the [other's] bedroom to authorize [a] search.”" Im not too sure what to think here as different attourneys have told me different things. NOTE-the reason for filming does not fall under any voyeur laws what if the placed cameras in the bathroom too?And if they lied and said their are no cameras, how can this be legal?

Answer: the one who OWNS the house makes the rules.you don't like them leave.

Question: Is this what you mean by no gun control? Rifles (or copies or duplicates): a.. M1 Carbine, b.. Sturm Ruger Mini-14, c.. AR-15, d.. Bushmaster XM15, e.. Armalite M15, f.. AR-10, g.. Thompson 1927, h.. Thompson M1; i.. AK, j.. AKM, k.. AKS, l.. AK-47, m.. AK-74, n.. ARM, o.. MAK90, p.. NHM 90, q.. NHM 91, r.. SA 85, s.. SA 93, t.. VEPR; u.. Olympic Arms PCR; v.. AR70, w.. Calico Liberty , x.. Dragunov SVD Sniper Rifle or Dragunov SVU, y.. Fabrique National FN/FAL, z.. FN/LAR, or FNC, aa.. Hi-Point20Carbine, ab.. HK-91, ac.. HK-93, ad.. HK-94, ae.. HK-PSG-1, af.. Thompson 1927 Commando, ag.. Kel-Tec Sub Rifle; ah.. Saiga, ai.. SAR-8, aj.. SAR-4800, ak.. SKS with detachable magazine, al.. SLG 95, am.. SLR 95 or 96, an.. Steyr AU, ao.. Tavor, ap.. Uzi, aq.. Galil and Uzi Sporter, ar.. Galil Sporter, or Galil Sniper Rifle ( Galatz ). Pistols (or copies or duplicates): a.. Calico M-110, b.. MAC-10, c.. MAC-11, or MPA3, d.. Olympic Arms OA, e.. TEC-9, f.. TEC-DC9, g.. TEC-22 Scorpion, or AB-10, h.. Uzi. Shotguns (or copies or duplicates): a.. Armscor 30 BG, b.. SPAS 12 or LAW 12, c.. Striker 12, d.. Streetsweeper. Catch-all category (for anything missed or new designs): A semiautomatic rifle that accepts a detachable magazine and has: (i) a folding or telescoping stock, (ii) a threaded barrel, (iii) a pistol grip (which includes ANYTHING that can serve as a grip, see below), (iv) a forward grip; or a barrel shroud. Any semiautomatic rifle with a fixed magazine that can accept more than 10 rounds (except tubular magazine .22 rim fire rifles). A semiautomatic pistol that has the ability to accept a detachable magazine, and has: (i) a second pistol grip, (ii) a threaded barrel, (iii) a barrel shroud or (iv) can accept a detachable magazine outside of the pistol grip, and (v) a semiautomatic pistol with a fixed magazine that can accept more than 10 rounds. A semiautomatic shotgun with: (i) a folding or telescoping stock, (ii) a pistol grip (see definition below), (iii) the ability to accept a detachable magazine or a fixed magazine capacity of more than 5 rounds, and (iv) a shotgun with a revolving cylinder. Frames or receivers for the above are included, along with conversion kits. Attorney General gets carte blanche to ban guns at will: Under the proposal, the U.S. Attorney General can add any "semiautomatic rifle or shotgun originally designed for military or law enforcement use, or a firearm based on the design of such a firearm, that is not particularly suitable for sporting purposes, as determined by the Attorney General." Note that Obama's pick for this office (Eric Holder, confirmation hearing set for Jan. 15) wrote a brief in the Heller case supporting the position that you have no right to have a working firearm in your own home. In making this determination, the bill says, "there shall be a rebuttable presumption that a firearm procured for use by the United States military or any federal law enforcement agency is not particularly suitable for sporting purposes, and a firearm shall not be determined to be particularly suitable for sporting purposes solely because the firearm is suitable for use in a sporting event." In plain English this means that ANY firearm ever obtained by federal officers or the military is not suitable for the public. The last part is particularly clever, stating that a firearm doesn't have a sporting purpose just because it can be used for sporting purpose -- is that devious or what? And of course, "sporting purpose" is a rights infringement with no constitutional or historical support whatsoever, invented by domestic enemies of the right to keep and bear arms to further their cause of disarming the innocent. Respectfully submitted, Alan Korwin, Author Gun Laws of America. http://www.gunlaws.com/gloa.htm Here we go......................................…

Answer: Of the FEW things he didn't vote "present" on.... we know how Obama OPENLY wants to abolish gun/ammo ownership. Biden was also a major player in the Clinton-era assault rifle ban. Together... they are enemies of the state and remain ignorant of the Constitution.

Question: When blaming illegal immigrants in AZ; is it like blaming the prostitute and not the Jon? Why has the Governor of Arizona not enforced the already on the book law for E-Verification? Why blame the illegal Latanos when the Governor and Business Owners are just as guilty? http://www.azcentral.com/specials/specia… Beginning Jan. 1, all business owners in Arizona risk losing their state and local licenses if they knowingly or intentionally - the law makes a distinction between "knowingly" and "intentionally" - hire undocumented workers after that date. Licenses can be suspended for 10 days or longer for a first offense and revoked altogether for a second offense. The Legal Arizona Workers Act requires Arizona employers to use E-Verify. A.R.S. § 23-214. The law provides that an employer that uses E-Verify to verify that an employee is authorized to work in the United States is entitled to a rebuttable presumption that the employer did not knowingly or intentionally employ an unauthorized alien. A.R.S. § 23-212(I) http://www.maricopacountyattorney.org/la…

Answer: Because that would be putting the blame on the actual employers instead of the Federal Government, this goes against what the right wants. It's just another tactic to gain votes. E-Verify was put into place for a reason, and less than 6% of AZ employers use it.

Question: Good Morning Dog Section? Its just one of those days so just with it, lol. Number 1 For those with spayed females or intact one who will never breed do you think they are missing out on being a mother. That they are pining away for just one litter like the Norwegian blue pines for the fjords? Number 2 Based on this section taken from a BSL here in the states what breeds(or mixes) do you think could fit this section which is in reference to the standards for the APBT, Am. Staff and Staff but don't actually include the above three breeds? "A pit bull may be identified as any dog which exhibits those distinguishing characteristics that substantially conform to the standards established by the American Kennel Club or United Kennel Club as described in the identification checklist which is on file in the City offices. An identification using the above standards shall be prima facie proof and create a rebuttable presumption that a dog is a pit bull." Chaos: Feel better Greek: I "salute" you. :P

Answer: Well, I am not sure about everyone else's Btch, but, my Sissy, that's' her real name BTW, an intact female, always wanted to be a mommy and a wife, she talked about it all the time, constantly... We went to behaviorists, we saw psychologists, nothing...she was adamant on getting some... Yes, I kept her suffering all these years, I slaved her away at work every day, never giving her what she needed to be a whole btch, I know, I am terrible, but, she was MY btch and I was not going to allow any fornication on my shift!!! As far as the pit thing, its Friday, I ddon'twant to ruin a perfectly GREAT day when its SUNNY, 63 degrees, COOL, BLUE skies, not a cloud in sight...hehehehe... ADD: Rayven...let me take this opportunity to thank you for your "salute", I felt some phantom pains as soon as I posted my answer, and take this moment to "salute" you back, with 2 hands...I always give my very best to those I care about!!!