§ 5.01  Introduction [53]

 

Rule 301 covers rebuttable presumptions in civil cases.  There is no rule dealing with criminal presumptions in the Rules of Evidence.  Rule 301 does not create any presumptions; it merely governs their effect.  The rule further limits its own reach by explicitly recognizing legislative authority over the effect of presumptions.

 

§ 5.02  Definitions of Presumptions & Inferences  [53-54]

 

 

Conclusive presumptions.  Rule 301 governs only rebuttable presumptions.  Conclusive or irrebuttable presumptions are actually substantive rules of law and are therefore beyond the scope of the Rules of Evidence.

 

Rebuttable presumptions.  A presumption, as that term is used in Rule 301, is a procedural rule that defines the relationship between two facts – a basic fact and a presumed fact.  If the basic fact is proved, the presumed fact must be accepted as established unless and until rebutted.

 

Inferences.  A presumption is mandatory.  In contrast, an inference, which also involves a relationship between two facts, is permissive.  For example, the doctrine of res ipsa loquitur involves an inference of negligence.  Establishment of the basic facts permits, but does not compel, a conclusion of negligence.

 

§ 5.03  Rationale for Presumptions  [54-55]

 

Presumptions are created for a number of reasons: (1) policy, (2) fairness (possession of evidence), and (3) probability.

 

§ 5.04  Effect of Presumptions  [55-57]

 

There are two principal views on the effect of presumptions in civil cases: (1) Professor Thayer’s theory, and (2) Professor Morgan’s theory.  The difference concerns the quantum of proof necessary to rebut.  Under the Morgan approach, a presumption shifts the burden of persuasion as well as the burden of production.

 

§ 5.05  Federal Rule 301 [57-58]

 

Rule 301 follows the Thayer approach. 

 

§ 5.06  Conflicting Presumptions  [58]

 

Under a pure Thayerian view, the presumptions would disappear if rebutted, and the evidence would be considered for its worth by the jury; often the basic fact would be circumstantial proof of the presumed fact.  Another approach would look to the underlying rationale for the two presumptions, and the presumption with the stronger policy basis would trump the other presumption.

 

§ 5.07  State Presumptions in Federal Civil Cases [58-59]

 

Federal Rule 302 provides:  “In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law.”

 

§ 5.08  Selected Presumptions  [59-60]

 

§ 5.09  Criminal Presumptions [60-65]

 

Neither Rule 301 nor any other rule of evidence governs presumptions in criminal cases. As with presumptions in civil cases, confusing terminology is responsible for many of the problems in this context.  For example, the presumption of innocence is not a true presumption; the accused is not required to prove any basic fact in order to trigger the presumption of innocence.  Rather, the “presumption of innocence” is the traditional way of stating that the burden of persuasion is on the prosecution. 

 

Civil-criminal distinction.  Although the term “presumption” is used in both criminal and civil cases, a presumption operates differently in the criminal context than in a civil case.  The difference arises from constitutional limitations.  In a criminal case, an accused cannot constitutionally suffer a directed verdict.  Thus, although the term presumption is often used in criminal cases, the effect of such a presumption generally is only that of an inference.