Over the years the term “presumption” has been used by virtually all courts to “designate what are more accurately termed inferences or substantive rules of law.” It has also been used as a “loose synonym for presumption of fact, presumption of law, rebuttable presumption, and irrebuttable presumption.” To this list the Kentucky Court of Appeals had added mandatory presumption, presumptive evidence, and prima facie case. Perhaps of more significance than the indiscriminate use of terminology is the extent to which courts have used “presumptions” to describe judicial reasoning of various kinds and to perform chores more appropriate to unrelated procedural devices. As a result of the misuse of this concept, its real utility has been immersed in almost hopeless confusion. In this article, an effort is made to demonstrate this confusion as it exists in Kentucky and, by doing so, to provide a framework within which presumptions can be made to perform the rather simple functions for which they were created. Essential to this effort as a matter of background is a thorough discussion of the burden of proof concept to which the first two parts of the article are devoted.

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Kentucky Law Journal, Vol. 57, No. 1 (1968-1969), pp. 7-50