Presentation of evidence - Presumptions

Learning Outcomes

This article explains the function and operation of presumptions within the Federal Rules of Evidence. It details how presumptions affect the burdens of production and persuasion in civil and criminal trials, distinguishes between different types of presumptions, and clarifies the application of FRE 301 and 302. After studying this material, you will be able to identify when a presumption arises, analyze its effect on the parties' respective burdens, and determine its impact on the admissibility and consideration of evidence in MBE scenarios.

MBE Syllabus

For the MBE, you are required to understand how presumptions operate in both civil and criminal cases under the Federal Rules of Evidence. This includes:

• Defining presumptions and distinguishing them from inferences.
• Analyzing the effect of presumptions on the burden of production and the burden of persuasion (FRE 301).
• Understanding the "bursting bubble" (Thayer) theory of presumptions in civil cases.
• Applying the rule for state law presumptions in diversity cases (FRE 302).
• Recognizing the constitutional limitations on presumptions against the accused in criminal cases.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. In a federal civil trial not governed by state law, what is the primary effect of a rebuttable presumption under FRE 301?
   1. It shifts the burden of persuasion to the opposing party.
   2. It shifts the burden of production to the opposing party.
   3. It creates a conclusive finding of the presumed fact.
   4. It allows the jury to draw a permissible inference.
2. In a federal diversity case concerning a breach of contract claim governed by State X law, State X law provides that proof of mailing a letter creates a presumption that shifts the burden of persuasion regarding receipt to the opposing party. Which law governs the effect of this presumption?
   1. Federal Rule of Evidence 301.
   2. State X law regarding presumptions.
   3. Federal common law.
   4. The judge's discretion based on fairness.
3. In a criminal trial, a mandatory presumption regarding an element of the crime charged against the defendant generally violates:
   1. The Confrontation Clause.
   2. The Double Jeopardy Clause.
   3. The Due Process Clause.
   4. The Cruel and Unusual Punishments Clause.

Introduction

Presumptions are procedural devices used in litigation that allow a fact-finder (usually the jury) to conclude that a certain fact (the presumed fact) exists based upon proof of another fact (the basic fact). They operate as evidentiary shortcuts, streamlining the presentation of evidence by dictating assumptions under specific circumstances. Understanding how presumptions function, particularly their effect on the burdens of proof, is essential for Evidence analysis on the MBE.

The Federal Rules of Evidence provide specific guidance on the operation of presumptions in civil cases (FRE 301 and 302), while constitutional principles, primarily Due Process, govern their use in criminal cases, especially when operating against the accused.

Key Term: Presumption A rule of law requiring that once a basic fact is proved, a presumed fact is also deemed established until rebutted by sufficient contrary evidence.

Nature and Function of Presumptions

A presumption differs fundamentally from a permissible inference. An inference allows, but does not require, the jury to find a fact based on proof of another fact. A presumption, however, mandates that the presumed fact be found unless and until the opposing party introduces sufficient evidence to rebut the presumption.

Presumptions primarily affect the burden of production (also known as the burden of going forward). Once the party relying on the presumption establishes the basic fact, the burden shifts to the opposing party to produce evidence contradicting the presumed fact.

Key Term: Burden of Production The obligation on a party to introduce sufficient evidence on an issue to have that issue decided by the fact-finder, rather than decided against the party as a matter of law.

Key Term: Burden of Persuasion The obligation on a party to persuade the trier of fact (usually by a preponderance of the evidence in civil cases, or beyond a reasonable doubt in criminal cases) that a fact exists. This burden generally does not shift during trial.

Presumptions in Civil Cases Under the Federal Rules

FRE 301: The "Bursting Bubble" (Thayer) Theory

FRE 301 governs the effect of presumptions in most federal civil actions and proceedings (unless federal law or another Rule provides otherwise). It adopts the "bursting bubble" theory, also known as the Thayer theory.

• Shifts Burden of Production: When a party introduces evidence establishing the basic fact required for a presumption, the burden of production regarding the presumed fact shifts to the opposing party.
• Burden of Persuasion Remains Unchanged: Crucially, under FRE 301, the burden of persuasion does not shift. It remains on the party who originally had it according to the substantive law.
• Effect of Rebuttal Evidence: If the opposing party produces sufficient evidence that a reasonable jury could find the non-existence of the presumed fact, the presumption "bursts" and disappears from the case. The jury is then free to weigh the evidence on both sides without reference to the presumption. If no rebuttal evidence is produced, the judge instructs the jury to find the presumed fact if it believes the basic fact has been proven.

Worked Example 1.1

Plaintiff sues Defendant for breach of contract, alleging she never received Defendant's acceptance letter, which was due by June 1. Defendant testifies she properly addressed, stamped, and mailed the acceptance letter on May 25. Assume federal law applies and recognizes a presumption of receipt upon proof of proper mailing. Plaintiff offers no evidence regarding non-receipt other than her own testimony. Defendant moves for a directed verdict on the issue of acceptance. How should the court rule?

Answer: The court should deny the motion. Defendant's proof of proper mailing established the basic fact, creating a FRE 301 presumption of receipt (the presumed fact). This shifted the burden of production to Plaintiff to offer evidence of non-receipt. Plaintiff's testimony denying receipt is sufficient evidence to rebut the presumption. The presumption "bursts," and the issue of receipt becomes a question of fact for the jury, which must weigh Defendant's evidence of mailing against Plaintiff's evidence of non-receipt without the mandatory effect of the presumption.

FRE 302: Effect of State Law in Diversity Cases (Erie Doctrine)

In civil cases where state law governs the substantive claim or defense (typically diversity jurisdiction cases), FRE 302 dictates that state law also governs the effect of a presumption related to that claim or defense. This is an application of the Erie doctrine. If state law gives a presumption a different effect than FRE 301 (e.g., shifting the burden of persuasion), the state rule must be followed.

Worked Example 1.2

Plaintiff (State A citizen) sues Defendant (State B citizen) in federal court based on diversity jurisdiction for negligence arising from a car accident in State A. State A law governs the claim. State A law provides that proof that a driver was using a cell phone at the time of an accident creates a presumption of negligence that shifts the burden of persuasion to the driver to prove they were not negligent. Defendant admits using her phone but argues it did not cause the accident. Which party bears the burden of persuasion on the issue of Defendant's negligence?

Answer: The Defendant. Because state law governs the substantive negligence claim, FRE 302 requires the federal court to apply State A's law regarding the effect of the presumption. State A law shifts the burden of persuasion upon proof of the basic fact (cell phone use). Therefore, Defendant bears the burden of persuading the jury she was not negligent. FRE 301's "bursting bubble" effect does not apply here.

Presumptions in Criminal Cases

The use of presumptions against a criminal defendant is significantly restricted by the Due Process Clause, which requires the prosecution to prove every element of the crime beyond a reasonable doubt (In re Winship).

• Mandatory Presumptions Unconstitutional: A mandatory presumption (one that requires the jury to find the presumed fact upon proof of the basic fact, unless rebutted) regarding an element of the crime is unconstitutional. It relieves the prosecution of its burden of proof.
• Permissive Inferences Allowed: A permissive inference (one that allows, but does not require, the jury to infer the presumed fact from the basic fact) is generally permissible if there is a rational connection between the basic fact and the inferred fact, such that the inferred fact is more likely than not to flow from the basic fact.
• Affirmative Defenses: A defendant can be required to bear the burden of persuasion regarding an affirmative defense (e.g., insanity, self-defense), as these do not negate elements the prosecution must prove.

Conclusive Presumptions

A conclusive (or irrebuttable) presumption is not a true presumption but rather a rule of substantive law disguised as a presumption. It dictates that upon proof of a basic fact, another fact must be found and cannot be rebutted. For example, the common law rule that a child under seven cannot commit a crime operates as a conclusive presumption of lack of criminal capacity.

Summary

Presumptions are procedural tools that dictate a factual conclusion upon proof of a basic fact, unless rebutted. Under FRE 301 (the "bursting bubble" theory), applicable in most federal civil cases, a presumption shifts only the burden of production, not the burden of persuasion. If sufficient rebuttal evidence is offered, the presumption disappears. FRE 302 mandates applying state presumption law in diversity cases where state law governs the claim or defense. In criminal cases, mandatory presumptions against the accused regarding elements of the crime violate due process; only rational permissive inferences are generally allowed.

Key Point Checklist

This article has covered the following key knowledge points:

• Definition of presumption vs. inference.
• Effect on burden of production and burden of persuasion.
• FRE 301 "bursting bubble" (Thayer) theory in federal civil cases.
• FRE 302 application of state presumption law in diversity cases.
• Constitutional limits (Due Process) on presumptions against criminal defendants.
• Distinction between mandatory presumptions and permissive inferences in criminal law.
• Nature of conclusive presumptions as rules of substantive law.

Key Terms and Concepts

• Presumption
• Burden of Production
• Burden of Persuasion