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Table of Contents

Article I. General Provisions
Article II. Judicial Notice
Article III. Presumptions
Rule 301
Rule 302
Article IV. Relevancy and Its Limits
Article V. Privileges
Article VI. Witnesses
Article VII. Opinions and Expert Testimony
Article VIII. Hearsay
Article X. Contents of Writings, Recordings,
and Photographs
Revised Rule 301. Effect of Presumptions 

Two predominate theories exist relative to the effect of presumptions: the Thayer-Wigmore theory which sees presumptions as a mechanism for shifting only the burden of going forward (sometimes referred to as the burden of production) and the Morgan-McCormick theory which interprets presumptions as shifting both the burdens of production and persuasion.

Under the Thayer-Wigmore theory, the purpose of a presumption is to require a party against whom a presumption operates to come forward with any evidence of the nonexistence of the presumed fact. The production of this non-B evidence destroys the presumption--making it disappear like a "bursting bubble." Consequently, the court does not mention the existence of the presumption to the jury. Consider, for example, a properly mailed letter (fact A) which creates the presumption that the addressee received the letter (fact B). Initially, one party would have to introduce evidence establishing that she used the correct address and postage, and placed the letter in a proper postal receptacle (collectively, fact A). Proof of fact A shifts the burden of production to the opposing party. If the opposing party, responding to that shifting burden, offers any evidence that he did not receive the letter (non-B evidence), the presumption of receipt (fact B) disappears because it has served its limited purpose by making the opposing party offer some evidence of lack of receipt.

Under the Morgan-McCormick theory, a presumption reallocates the burden of persuasion to the party against whom the presumption operates. Therefore, unlike under the Thayer-Wigmore theory, if non-B evidence is produced, the presumption nonetheless survives. The judge instructs the jury that if it finds fact A, it must find fact B unless the opposing party convinces it, by a preponderance of the evidence, that B is not true. For example, with the common law presumption that a properly mailed letter is received by the addressee, after the opposing party offers evidence that the addressee did not receive the letter, the judge instructs the jury that if it finds that the letter was properly mailed, it must also find that the addressee received the letter unless the opposing party convinces it that the letter was not received.

When Article III of the Federal Rules of Evidence was promulgated originally, the Supreme Court proposed a rule adopting the Morgan-McCormick theory. The Senate, however, rejected the Morgan-McCormick theory, adopting instead Current Rule 301 which shifts only the burden of production. Therefore, following the Thayer-Wigmore theory, Current Rule 301 requires the opposing party to produce any evidence of the non-existence of the presumed fact to rebut the presumption. With the properly mailed letter, the presumption of receipt would be destroyed even if the opposing party offered only the unbelievable testimony of nonreceipt from the biased addressee.

By shifting the burden of production, and not persuasion, Current Rule 301 undervalues the role of a presumption--allowing the party against whom it operates to do less than the logic and policies underlying the presumption seem to demand. Some presumptions are created, in part, because of the logical inference and probability that if fact A is true, fact B is also true. Clearly, unpersuasive evidence, while it meets the burden of production under Current Rule 301, does not destroy a logical inference between the two facts of proper mailing and receipt. The Senate apparently concluded that in cases where unbelievable evidence is the only evidence produced, the court could instruct the jury that if it finds A, it may find B from the logic inference that remains. While this may be appropriate for a presumption based only on a logical inference, the solution does not adequately address every presumption. For example, a presumption that a miner with black lung contracted the disease while working in the mine was created, in part, because of a social policy favoring the miner or his estate. If such a presumption is destroyed by unbelievable evidence, an instruction about a permissible logical inference between two facts will probably not be applicable and, even if so, will not necessarily uphold the social policy behind the presumption. Professor Morgan further explained the necessity of shifting the burden of persuasion:

The creation of a presumption for a reason that the court deems sufficient, a rule of law if this basic fact stands by itself there must be a finding of presumed fact, whether the jury would ordinarily find it from the basic fact or not; but then the total destruction of the presumption just the minute some testimony is put in which anybody can disbelieve, which comes from interested witnesses, and which is of a sort that is usually disbelieved. It seems to me it is futile to create a presumption if it is to be so easily destroyed . . . .

Historically, courts have demonstrated the same dissatisfaction with Current Rule 301. In an effort to give presumptions more substance, courts have assigned a standard of proof that must be satisfied to rebut the presumption. Even after production of non-B evidence, courts have continued to comment on the presumption to the jury, instructing it to consider the presumption as evidence to be weighed. This modification of the burden of production has been sporadic and inconsistent. More important, however, by quantifying the burden of production, the courts have moved toward the Morgan-McCormick theory because they have merged the burden of production with the burden of persuasion. Indeed, some courts, in apparent disregard of Current Rule 301, construe the presumption as shifting the burden of persuasion--following the Morgan-McCormick theory outright.

Revised Rule 301 codifies the current practice in many states, as well as the language of the Uniform Rules of Evidence, and shifts the burden of persuasion to the party against whom the presumption operates. If a presumption is created, the judge instructs the jury that if it finds fact A, it must find fact B unless the party against whom the presumption operates persuades the jury (through production of non-B evidence) that fact B is not true. Clarifying the burdens that must be borne, Revised Rule 301 simplifies the use of presumptions. By reallocating the burden of persuasion, Revised Rule 301 gives the presumption a significant role in the trial that is more consistent with the logic and policy that underlie it. Through this enhanced purpose and simplicity, presumptions will be more consistently applied.

Effect of Presumptions in Criminal Proceedings

In criminal cases, courts have used the term "presumption" when, in fact, they are allowing only permissible inferences to be drawn between facts. Rather than instructing the trier of fact in criminal proceedings that if it accepts fact A, it must accept fact B, courts have instructed the trier of fact that it may accept the second fact. The permissible inference does not shift either burden associated with presumptions. Because mandatory presumptions reallocate burdens, use of true presumptions against criminal defendants has been widely believed to be a violation of the defendant's right to due process of law and to a trial by a jury of his peers.

In County Court of Ulster County v. Allen, the Supreme Court addressed the constitutionality of presumptions in criminal cases. The Court distinguished mandatory and permissible presumptions. The Court stated that permissible presumptions shifted neither burden associated with presumptions, but that a mandatory presumption shifted at least the burden of going forward with production of evidence. The Court found that

[i]n the [mandatory presumption] situation, since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.

The Court stated that the prosecution could, however, rely on evidence that established a permissible presumption even if such evidence, alone, did not establish guilt beyond a reasonable doubt. In subsequent cases examining the application of a presumption in criminal proceedings, the Court has characterized them as mandatory and ruled that such presumptions are unconstitutional.

Current Rule 301 applies only to civil cases, and Congress did not adopt Proposed Rule 303, Presumptions in Criminal Cases. Therefore, no federal rule governs presumptions in criminal cases. The Project concluded that by applying presumptions only to civil proceedings, Current Rule 301 unnecessarily restricts application of the evidentiary device. The language suggests that only a party in a civil action may use a presumption. In a criminal case for tax evasion, however, if the defendant establishes that she mailed her tax return and payment, she should be entitled to the presumption that the IRS received them--the same presumption that would be applicable in a civil proceeding.

Although current judicial interpretation suggests that use of mandatory presumptions against the criminal defendant violates the defendant's right to due process of law, the language of Current Rule 301 fails to allow for the possibility of a modified interpretation. As suggested by Allen, if the presumption establishes guilt beyond a reasonable doubt, the prosecution may rely on the presumption without violating the defendant's due process rights. By defining the effect of a presumption in general, Revised Rule 301 is intended to apply against the existing constitutional backdrop. It does not remove any constitutional protection afforded a criminal defendant. If it is unconstitutional to employ mandatory presumptions against criminal defendants, Revised Rule 301 must be construed accordingly. If, however, the converse proves to be true, the rule will not preclude what the Constitution does not forbid. Revised Rule 301 merely allows for the possibility of future modifications of constitutional interpretation.

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