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[p.1701]

Evidence and Presumptions.—The establishment of presumptions and rules respecting the burden of proof is clearly within the domain of the legislative branch of government.47 Nonetheless, the due process clause does impose limitations upon the power to provide for the deprivation of liberty or property by a standard of proof too lax to make reasonable assurance of accurate factfinding. Thus, “[t]he function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.”’48 Applying the formula it has worked out for determining what process is due in a particular situation,49 the Court has held that in a civil proceeding to commit an individual involuntarily to a state mental hospital for an indefinite period, a standard at least as stringent as clear and convincing evidence is required.50 Because the interest of parents in retaining custody of their children is fundamental, the State may not terminate parental rights through reliance on a standard of preponderance of the evidence— the proof necessary to award money damages in an ordinary civil action— but must prove by clear and convincing evidence that the parents are unfit.51 Unfitness of a parent may not simply be presumed because of some purported assumption about general characteristics, but must be established.52

As long as a presumption is not unreasonable and is not conclusive of the rights of the person against whom raised, however, it does not violate the due process clause. Legislative fiat may not take the place of fact, though, in the determination of issues involv[p.1702]ing life, liberty, or property, and a statute creating a presumption which is entirely arbitrary and which operates to deny a fair opportunity to repel it or to present facts pertinent to one’s defense is void.53 On the other hand, if there is a rational connection between what is proved and what is inferred, legislation declaring that the proof of one fact or group of facts shall constitute prima facie evidence of a main or ultimate fact will be sustained.54

For a brief period, the Court utilized what it called the “irrebuttable presumption doctrine” to curb the legislative tendency to confer a benefit or to impose a detriment, depending for its application upon the establishment of certain characteristics from which the existence of other characteristics are presumed.55 Thus, as noted, in Stanley v. Illinois,56 the Court found invalid a construction of the state statute that presumed illegitimate fathers to be unfit parents and that prevented them from objecting to state wardship. Mandatory maternity leave rules of school boards requiring pregnant teachers to take unpaid maternity leave five and four months respectively prior to the date of the expected births of their babies were voided as creating a conclusive presumption that every pregnant teacher who reaches a particular point of pregnancy becomes physically incapable of teaching.57 Major controversy developed over application of the doctrine in benefits cases. Thus, while a State may require that nonresidents must pay higher tuition charges at state colleges than residents, and while the Court assumed that a durational residency requirement would be permissible as a prerequisite to qualify for the lower tuition, it was held impermissible for the State to presume conclusively that because[p.1703]the legal address of a student was outside the State at the time of application or at some point during the preceding year he was a nonresident as long as he remained a student. The due process clause required that the student be afforded the opportunity to show that he is or has become a bona fide resident entitled to the lower tuition.58

Moreover, a food stamp program provision making ineligible any household that contained a member age 18 or over who was claimed as a dependent for federal income tax purposes the prior tax year by a person not himself eligible for stamps was voided on the ground that it created a conclusive presumption that fairly often could be shown to be false if evidence could be presented.59 The rule which emerged for subjecting persons to detriment or qualifying them for benefits was that the legislature may not presume the existence of the decisive characteristic upon a given set of facts, unless it can be shown that the defined characteristics do in fact encompass all persons and only those persons that it was the purpose of the legislature to reach. The doctrine in effect afforded the Court the opportunity to choose between resort to the equal protection clause or to the due process clause in judging the validity of certain classifications,60 and it precluded Congress and legislatures from making general classifications that avoided the administrative costs of individualization in many areas.

Utilization of the doctrine was curbed, if not halted, in Weinberger v. Salfi,61 in which the Court upheld the validity of a Social Security provision requiring as a qualification of receipt of benefits as a spouse of a covered wage earner that one must have been married to the wage earner for at least nine months prior to his death. Purporting to approve but to distinguish the prior cases in the line,62 the Court rather imported traditional equal protection analysis into considerations of due process challenges to statutory classifications.63 “Extensions” of the prior cases to government entitlement classifications, such as the Social Security Act qualification[p.1704]standard before it, would, said the Court, “turn the doctrine of those cases into a virtual engine of destruction for countless legislative judgments which have heretofore been thought wholly consistent with the Fifth and Fourteenth Amendments to the Constitution.”64 Whether the Court will now limit the doctrine to the detriment area only, exclusive of benefit programs, whether it will limit it to those areas which involve fundamental rights or suspect classifications, in the equal protection sense of those expressions,65 or whether it will simply permit the doctrine to pass from the scene remains unsettled, but it is noteworthy that it now rarely appears on the Court’s docket.66


Footnotes

47 Hawkins v. Bleakly, 243 U.S. 210, 214 (1917) ; James– Dickinson Co. v. Harry, 273 U.S. 119, 124 (1927) . Congress’ power to provide rules of evidence and standards of proof in the federal courts stems from its power to create such courts. Vance v. Terrazas, 444 U.S. 252, 264–67 (1980) ; Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 31 (1976) . In the absence of congressional guidance, the Court has determined the evidentiary standard in certain statutory actions. Nishikawa v. Dulles, 356 U.S. 129 (1958) ; Woodby v. INS, 385 U.S. 276 (1966) .
48 Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970) (Justice Harlan concurring)).
49 Mathews v. Eldridge, 424 U.S. 319 (1976) .
50 Addington v. Texas, 441 U.S. 418 (1979) .
51 Santosky v. Kramer, 455 U.S. 745 (1982) . Four Justices dissented, arguing that considered as a whole the statutory scheme comported with due process. Id. at 770 (Justices Rehnquist, White, O’Connor, and Chief Justice Burger). Application of the traditional preponderance of the evidence standard is permissible in paternity actions. Rivera v. Minnich, 483 U.S. 574 (1987) .
52 Stanley v. Illinois, 405 U.S. 645 (1972) (presumption that unwed fathers are unfit parents). But see Michael H. v. Gerald D., 491 U.S. 110 (1989) (statutory presumption of legitimacy accorded to a child born to a married woman living with her husband defeats the right of the child’s biological father to establish paternity and visitation rights).
53 Presumptions were voided in Bailey v. Alabama, 219 U.S. 219 (1911) (anyone breaching personal services contract guilty of fraud); Manley v. Georgia, 279 U.S. 1 (1929) (every bank insolvency deemed fraudulent); Western & Atlantic R.R. v. Henderson, 279 U.S. 639 (1929) (collision between train and auto at grade crossing constitutes negligence by railway company); Carella v. California, 491 U.S. 263 (1989) (conclusive presumption of theft and embezzlement upon proof of failure to return a rental vehicle).
54 Presumptions sustained include Hawker v. New York, 170 U.S. 189 (1898) (person convicted of felony unfit to practice medicine); Hawes v. Georgia, 258 U.S. 1 (1922) (person occupying property presumed to have knowledge of still found on property); Bandini Co. v. Superior Court, 284 U.S. 8 (1931) (release of natural gas into the air from well presumed wasteful); Atlantic Coast Line R.R. v. Ford, 287 U.S. 502 (1933) (rebuttable presumption of railroad negligence for accident at grade crossing). See also Morrison v. California, 291 U.S. 82 (1934) .
55 The approach was not unprecedented, some older cases having voided tax legislation that presumed conclusively an ultimate fact. Schlesinger v. Wisconsin, 270 U.S. 230 (1926) (deeming any gift made by decedent within six years of death to be a part of estate denies estate’s right to prove gift was not made in contemplation of death); Heiner v. Donnan, 285 U.S. 312 (1932) ; Hoeper v. Tax Comm’n, 284 U.S. 206 (1931) .
56 405 U.S. 645 (1972) .
57 Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974) .
58 Vlandis v. Kline, 412 U.S. 441 (1973) .
59 Department of Agriculture v. Murry, 413 U.S. 508 (1973) .
60 Thus, on the some day Murry was decided, a similar food stamp qualification was struck down on equal protection grounds. Department of Agriculture v. Moreno, 413 U.S. 528 (1973) .
61 422 U.S. 749 (1975) .
62 Stanley and LaFleur were distinguished as involving fundamental rights of family and childbearing, id. at 771, and Murry was distinguished as involving an irrational classification. Id. at 772. Vlandis, said Justice Rehnquist for the Court, meant no more than that when a State fixes residency as the qualification it may not deny to one meeting the test of residency the opportunity so to establish it. Id. at 771. But see id. at 802–03 (Justice Brennan dissenting).
63 Id. at 768–70, 775–77, 785 (utilizing Dandridge v. Williams, 397 U.S. 471 (1970) , Richardson v. Belcher, 404 U.S. 78 (1971) , and similar cases).
64 Weinberger v. Salfi, 422 U.S. 749, 772 (1975) .
65 Vlandis, which was approved but distinguished, is only marginally in this doctrinal area, involving as it does a right to travel feature, but it is like Salfi and Murry in its benefit context and order of presumption. The Court has avoided deciding whether to overrule, retain, or further limit Vlandis. Elkins v. Moreno, 435 U.S. 647, 658–62 (1978) .
66 In Turner v. Department of Employment Security, 423 U.S. 44 (1975) , decided after Salfi, the Court voided under the doctrine a statute making pregnant women ineligible for unemployment compensation for a period extending from 12 weeks before the expected birth until six weeks after childbirth. But see Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1977) (provision granting benefits to miners “irrebuttably presumed” to be disabled is merely a way of giving benefits to all those with the condition triggering the presumption); Califano v. Boles, 443 U.S. 282, 284–85 (1979) (Congress must fix general categorization; case–by–case determination would be prohibitively costly).
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